FLRA FORCES UNIONS TO WEAPONIZE RATIFICATION VOTES

If an agency does not like a FSIP decision, all it needs do is have the agency head disapprove the agreement. That gives the agency an official platform on which to challenge the legality of what FSIP did. In the meantime, the entire new agreement is put on hold, absent mutual agreement to implement a portion of it. But if a union does not like FSIP-imposed provision, FLRA says it has no way to directly object by getting an FLRA ruling on the legality of the Panel’s action. According to FLRA, the union must refuse to comply with the Panel decision and “hope,” “keep its fingers crossed,” and “pray” that the agency files a ULP against it for doing so.  If the agency chooses not to file a ULP, but to unilaterally implement the new agreement with the agency-favorable provision, the union is caught in a nowhere-to-go trap. We say this because FLRA has repeatedly stated, “Only a party that fails or refuses to comply with a Panel order, and is consequently charged with a ULP, may then challenge the Panel’s order.” (DoD, DoDEA and FEA, 73 FLRA 149 (2022)) If the agency complies, there likely are no grounds to file a ULP (5 USC 7116(a)(6)) against to challenge the legality of the FSIP order. 

Chairman Dubester tried to soften the inequity of the FLRA majority’s insistence that a union can only challenge the legality of a FSIP order if the agency first charges it with a ULP. In a concurring opinion he wrote, “a union may challenge matters pertaining to a Panel decision by bringing an unfair labor practice charge alleging that an agency action related to the Panel proceeding constituted an unfair labor practice.”  His view is that if the agency did something illegal which the Panel adopted or did not object to, the union could file a ULP against the agency.  This would include situations where the agency went to FSIP with a proposal that was permissively negotiable with the union, or the agency put a new proposal topic on the table for the first time at FSIP, or the agency engaged in bad faith bargaining, etc. (Note the difference in the underlined portions of these two statements above. Even Dubester denies a union the right to directly challenge a Panel order like an agency can through 7114(c) agency head disapproval.) 

Unfortunately, there is no guarantee that even if the Authority finds the agency committed a ULP that it will overturn the Panel’s order. For example, it could find that even though the agency engaged in bad faith bargaining leading up to and at the FSIP, the damage was not enough to overturn the Panel decision. In contrast, if an agency head’s disapproval is upheld the entire new pending agreement is unenforceable.

But even more important than that shortcoming in Dubester’s advice is the reality that at times the illegal act may have been initiated by the Panel itself without any prompting or assistance from the bargaining agency.  For example, in DVA and NNOC, 18 FSIP 42 (2018) the union wanted to retain some existing contract language while the agency proposed to delete that language addressing how it would manage certain employees in favor of the agreement simply being silent on the issue. The FSIP went above and beyond what the agency sought by imposing the following provision: “The department has unfettered discretion to hire, manage, and implement policy concerning Contract RNs.” Assume the union was furious because not only does this appear to be an illegally imposed waiver of its rights to bargain over any changes the agency makes, but the Panel imposed something that was never an issue on the bargaining table.

Given that the agency would have to be brain dead to file a ULP against the union rather than unilaterally implement the new agreement, what can the union do about the Panel’s seemingly illegal decision?  It seems to us that the best course of action is for the union to wield its right to ratify like a Game of Thrones “Longclaw” sword and paint the L-M relationship walls with blood and viscus.

We say that because the best thing a union can do is reject the new agreement in ratification and demand to begin term bargaining all over again starting with a new ground rules agreement and information requests. Given that ratification is a non-negotiable union right, there is nothing for the agency to file a ULP over—or any other way to confine the remaining dispute to the single issue of the FSIP-imposed provision’s legality before FLRA for a quick ruling. It is stuck with bargaining the agreement all over again.  It cannot even legally unilaterally implement the new agreement so long as the ground rules called for ratification. If it did it would likely face a huge status quo ante liability. If the union had a route to directly appeal the legality of the Panel decision to FLRA, it would not need to wield its power to ratify as a weapon of mass destruction and toss months or even years of bargaining results.

If you need additional examples of how the Panel can exceed its legal jurisdiction and the limits of 7119(b)(5)(B)(iii) prohibition against acting “inconsistent with this chapter” click over to, “Vitally Important Things to Know About FSIP Powers.

Of course, the brain trust at Fedsmill.com thinks there might be a way around the Authority’s refusal to let union’s directly challenge a Panel order. 5 USC 7116(a)(8) makes it a ULP for an agency to fail to comply with any provision of the statute. Given that the statute is filled with obligations that agency only implement agreements with legal provisions, it seems to us that if an agency does implement an agreement with what the union believes is an illegally imposed Panel provision that the union can challenge the agency head approval as illegal. The agency would then face the liability that the entire new agreement is void because agency heads can only approve agreements in their entirety, not partially legal ones. The shortcoming of testing this route (absent a request for a Major Policy Request) is that a union would have to endure the agency implementing an agreement with a terrible anti-union, Panel-imposed provision and hope that it wins after a few years of litigation. To date, nothing from FLRA indicates that it recognizes that an agency commits a ULP if it implements, over the union’s objection, an agreement after agency head review that contains an illegally imposed provision from the Panel.

So, until someone tells us otherwise our advice is that the union’s safest course of action is to never relinquish its right to ratify an agreement and to not ratify an agreement that contains a legally flawed Panel provision.

We will be very surprised if the current Panel, run by certified neutrals, abuses its power. However, one need only look at the Panel’s anti-union years from 2017-2020, where the White House staffed it with political party operatives tasked with punishing unions and without any pretense of being L-M neutrals, to

About AdminUN

FEDSMILL staff has over 40 years of federal sector labor relations experience on the union as well as management side of the table and even some time as a neutral.
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3 Responses to

  1. Dave Feder says:

    Is Fedsmill advising that a union has a right to ratify or not ratify language imposed by the Panel? Previous Fedsmill advice says no ratification of Panel ordered language:
    “Does the union have the right to ratify any agreement terms imposed by the FSIP? Yes or No?

    FSIP decisions are final and binding and are not subject not ratification. However, if FSIP imposes just three clauses of a contract with 50 overall changes, the union members are entitled to ratify those 47 provisions that were not part of the Panel’s “final and binding” order.”

    • AdminUN says:

      Fedsmill is advising that when a term or mid-term agreement is reached and the Panel imposed maybe four or five of its provisions, which is typically the case, the union members have the right to vote on the total agreement if they properly notified the agency in advance that it would retain the right to ratify. If the total agreement is voted down, the issues the Panel dealt with are on the table for the second round of bargaining. If that post-vote bargaining discussion goes back to the Panel, the reality is that the Panel will either declare that its original decision on those four or five issues stands or that the union must “show cause” as to why it should not reimpose the same provisions. How else can a union deal with a Panel-imposed provision that the employer did not propose, but the Panel wrote and imposed at its own initiative? How can it file a ULP against the agency when the agency did nothing wrong in that case?

    • AdminUN says:

      Dave, I failed to respond directly to your last comment. Ratification votes are held on the contract as a whole. No one ratifies article-by-article. So, the practical effect of saying that the members are voting on the 47 jointly agreed articles, but not on the Panel imposed provisions is that they are taking into consideration what the Panel did. A union does not even have to explain why it failed to ratify a proposed agreement.

      Hope life goes well for you.

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