Suppose that just as the FLRA is turned over to the control of two Presidential appointees with long records of anti-employee decisions and the FSIP populated with notorious anti-union (and apparently anti-government, too) decision-makers, agencies were given the right to demand in bargaining that employees and unions be obligated to repay benefits they got through existing agreements. For example, imagine a union negotiated a $200.00 a month public transit subsidy as part of a term agreement signed in 2012. In fact, let’s assume that the FSIP imposed the contract clause as part of a final and binding order. Agencies today have the right to propose that they can stop paying the benefit in the future, but soon they might be able to also demand that employees repay all the transit money they got in the 2102 agreement. Or they could demand that union reps repay the agency for some of the official time hours the current contract gave them the last few years. Or they could demand that prior arbitration victories be undone and employees repay the money they were awarded.

It may sound absurd to all but the rabid, anti-union zealots in the country, but the FLRA General Counsel apparently does not think so.  It is arguing for precisely that in a case working its way through the system.

The GC is representing a union that convinced the Panel to order a retroactively effective financial adjusts to a prior term contract.  The agency refused to implement the Panel order arguing, among other things, that the Panel does not have the right to retroactively change the terms of an existing agreement that calls for a different amount of money than the new Panel order. So, now the GC is arguing that the Panel has the right to order contract provisions in existing agreements, even ones imposed by prior Panels, be retroactively changed.

Presumably, the GC thinks it is doing the right thing for the employees and union, but if the FLRA buys its argument the Authority is not going to say that “only unions” have the right to propose retroactive increases in financial benefits spelled out in existing master agreements. If the GC argument is upheld, it will be because the Authority concludes that the Panel has the power as part of its work setting the terms of the next term agreement to change the terms of a prior agreement implemented years ago. Waves of ecstasy will roll through the folks at the Heritage Foundation and Breitbart if the Authority lets agencies demand repayment of financial benefits a prior FSIP might have imposed. It is hard to imagine a better threat to hold over a union’s head than to obligate union members to repay compensation pursuant to the union’s newest negotiations. We suspect that large numbers of employees would drop out of the union and a decertification petition would not be far behind if a union puts all its members into debt.

Here is hoping that the new Authority majority finds the strength to restrain itself from the temptation to administer such a devastating kill shot to unions so early in their tenure.

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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2 Responses to

  1. RHW says:

    I don’t think there’s any basis for this concern. There are statutory protections governing the collection of overpayments. See 5 U.S.C. § 5584 (procedures for requesting waiver of overpayments). And while it’s not explicit, the heavy implication is that agencies are only entitled to collect “erroneous” payments. A retroactive FSIP order wouldn’t cause the payments to be erroneous, which would mean there’s no authority for agencies to require their repayment.

    It’d also probably violate the Constitution to retroactively invalidate payments that were lawful at the time the government paid them.

  2. Andrew Lovett says:

    Does this actually surprise you? On November 9, 2016 warnings should have spread throughout the unionized world “the times they are a changing” and not for the better. This administration will certainly bring the US back to the good old days…the days were there is no longer a 40 hour work week, workplace safety is no longer a concern for the government or corporations, children will once again be able to work long hours. Yes the times are a changing, but I hope not so far that we can never get things back on track.

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