Mark Carter earns his living working for a law firm that brags about its ability to fight unions, not provide a balanced, low conflict, workplace. So, it should surprise no one that his gut reaction to anything a union wants is “Hell, no!”  Even though in his spare time, he comes to Washington, D.C. where he pretends to be a labor-management neutral as Chair of the Federal Service Impasse Panel there is not much of a chance that he thinks like a professional labor-management neutral. We thought it might be helpful to layout what goes totally over Mark’s head because of his bias. 

Mark repeatedly issues FSIP decisions where he denies the union a role in performance counselling sessions that a single supervisor (or even multiple supervisors) might summon a targeted employee to attend. His rationale in DVA and NNOC, 18 FSIP 042 (2018) is representative of how he reaches that conclusion, i.e., he believes

  • The counselling meetings are only intended to provide the employee information and performance feedback,
  • If a union rep is present it will only make the manager’s job more difficult when s/he should be “unencumbered” to deal with the employee,   
  • A union rep would only change the “focus” of a counselling session,
  • Besides, the employee can grieve if his/her rights are violated in a counselling session.

Mark acts like he has no idea that these so-called counselling sessions can turn into meetings where the managers tries to get an employee to–

  • resign in lieu of getting fired,
  • agree to give up a right established by contract or practice,  
  • admit to some violation,
  • treat an employee differently than a similarly situated employee, and/or
  • agree to do the manager a special favor. 

Certainly there are people who think that such things never happen because all managers are well-intended and properly trained. That is not Mark’s problem.  He knows damn well that when a manager gets an employee behind closed doors that manager can be the proverbial 800 pound gorilla on steroids if s/he wants to be. Mark just chooses to ignore that because, for example, it highlights his lack of decisional integrity that true neutrals have and exposes him as a political operative of whatever alt-right crank-crowd controls his future political appointments, etc.

But that predisposition against all things favoring employees or the unions they have selected, probably blinds him to all the good a union rep can do in these meetings for the agency.  In our experience, it is common in these meetings for union reps to —

  • Remind the managers of any obligations in the contract and regulations for counselling employees that HR never told the manager about,
  • Point out when the manager is disparately treating an employee in comparison to a similarly situated one—and hence begging for an EEO charge and penalty,
  • Note that what the manager is proposing deviates from past practice,
  • Suggest to the manager some creative options other managers have done to help the employee in these situations,
  • Re-enforce the manager’s message to a poor performing employee that/she needs to change.  (Union reps don’t like to spend a lot of time with employees who are a lost cause and more often than you think nudge them to resign, retire or take a downgrade.  They can’t do that unless they know the details and facts from the manager’s perspective.)

Mark also likely never gives a moment worth of consideration to what a union could do if it really wanted to put pressure on a manager to let its reps into these meetings.  It could—

  • File a grievance over being excluded.  It does not have to be a winner, just something that chews up the manager’s time as a penalty for denying access..
  • File an EEO charge alleging discrimination.  Again, it does not have to be a winner; it merely has to make a point that giving the union access when an employee requests and meets the criteria is the wiser way to handle these things.
  • File an information request for any and all records and documents relied upon in the meeting—and maybe all other counselling sessions to investigate potential disparate treatment or prohibited personnel practice.
  • File a ULP charge claiming the manager unilaterally deviated from practice or instituted a change in working conditions without notice and bargaining.
  • Send all the manager’s employees an email warning them about how the manager can and has abused other employees.

By denying unions a reasonable contract opportunity to participate in these meeting, Mark has actually boosted the chance that unions will now resort to these options.  That is not good for management.

A true neutral, experienced in viewing an issue from all sides of the table, would have seen an easy way to meet the interests of the employer, the employee and the union. First, the neutral would have pointed out that the proposal in the DVA and NNOC case did not give the union the unilateral right to attend all counselling sessions; the union only got in if the employee first requested it attend. Second,  a professional neutral would have known s/he could have limited the right of the union to attend even further by granting it the right to attend to only non-routine counselling sessions, e.g., other than the mid-year review everyone goes through.   Third, if truly concerned with a union rep disrupting the meeting a professional neutral could have imposed the same behavior rules that apply to reps in Weingarten and formal meeting.  If they disrupt, they are out.

Over the years we have found certain things to be true of anti-union zealots appointed to the Panel for their mindless political idolatry rather than fitness to do the job. They decide disputes by finding totally for the agency rather than looking to see if there is a way to meet everyone’s interest so as to diffuse future work place tensions around the issue.

The zealots are unaware that the most fundamental law of physics also applies in the workplace.  For every action, there is an equal and opposite reaction. Most unions will not fold up operations and meekly slink into the shadows when they get screwed by some Panel political hack.  Rather, they will look for “non-traditional” ways to solve the problem or encourage the agency to voluntary changes its position.

Finally, anti-union zealots don’t care about fostering good management practices nor even boosting managers’ power over employees.  For them, decisions like this make it seem that their government job is all about cult loyalty,even if it leaves unresolved conflicts festering in the workplace behind them.



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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