HAS FSIP VIOLATED THE LAW ON OFFICIAL TIME?
FSIP has the statutory power to “take whatever action is necessary” to settle a bargaining impasse. (See 5 USC 7119(c)(5)(B)(iii)) But it does not have unlimited power. The rest of that statutory section requires that whatever the Panel does must not be, “…inconsistent with this chapter to resolve the impasse.” The Panel recently cut a union’s official time allotment from about 181,000 hours per year in a 45,000-person unit to 50,000. There is not a thing the union can do to challenge that—unless it can show that decision violated a statutory provision. But there just might be.
Another provision of the law (5 USC 7131(d)) holds that unions are entitled to official time to represent employees, i.e.,
Except as provided in the preceding subsections of this section-
(1) any employee representing an exclusive representative, or
(2) in connection with any other matter covered by this chapter, any employee in an appropriate unit represented by an exclusive representative,
shall be granted official time in any amount the agency and the exclusive representative involved agree to be reasonable, necessary, and in the public interest.
The law does not say that unions get an amount of official time that the FSIP wants them to have; it says that the time they get must be “reasonable, necessary, and in the public interest.” That seems to say that if the time the Panel gives the union does not meet those three criteria, the Panel has issued a decision “inconsistent with this chapter.”
For decades the Authority has not paid much attention to that concluding phrase on 7131, but that all changed a few weeks ago thanks to Kiko and Abbott. In CBP and AFGE, 71 FLRA 119 (2019) they overturned an arbitration decision because the arbitrator did not apply and enforce that very phrase to an official time dispute. The brilliant Kiko and Abbott, who by the way we are going to nominate to be the commencement speakers at the next graduation from Trump University, said that the law requires that one be able to understand how the award of time meets those criteria. So, we ask, if the phrase carries legal weight to invalidate an arbitration decision, why does it not carry the same weight and invalidate a Panel decision?
The trick obviously is finding a way to overturn the decision. The courts have indicated they do not want to review FSIP decisions. Yet, this seems like as good a set of facts to retest that resistance, i.e., the Panel has seemingly violated a statutory provision that the FLRA has recently declared to have teeth.
Another path might be to ask the Panel to reverse itself, but Carter and his posse seem hell-bent on following White House orders to limit time to one hour per unit employee per year with little to no concern for details like the statutory law. The union could also ask FLRA to issue a stay and reverse, but the odds are high that Kiko and Abbott will find a way to explain why the three criteria only apply to protect an agency, not employees. That would fit right in with their legal philosophy of labor relations being a master and servant relationship devoid of any hint of workplace democracy even in government.
A third path might be to notify the agency head that the Panel decision is illegal and should be disapproved, indeed, must be disapproved. That would put the entire new agreement on hold and send parties back to bargaining. If the agency head ignored the claim, the union could challenge the agreement in the grievance procedure as illegal.
A fourth approach would be to generate some concerted action against the agency to get it to reconsider.
We all know what happened here. Rather than do the hard, evidentiary work of determining how much official time would be reasonable, necessary and in the public interest, the Panel threw a few obviously disingenuous words on the page about official time and imposed the number of hours that Trump’s Executive Order pressures them to, i.e., about an hour for each unit employee. How else is Chairman Carter going to get his Federal judgeship or other strokes if he does not prove his total obedience to all things Trumpian? The Panel has stated that its decisions are going to be driven by politics when it comes to union rights rather than evidence and reason.
An honest decision would have looked at the past usage of time and the amount of activity generated by management midterm change negotiations, management scheduled formal meetings, management required investigatory interviews, management personnel actions, employee grievances, EEO charges, etc.