WELCOME BACK, CARTER: FSIP, ICE, & AFGE
Someone needs to check where Mark Carter, the Chair of the FSIP, went to law school. Given his string of seemingly illegal decisions recently, our best guess is it was at Trump University. His latest blunder popped up in the recent Panel order imposing bargaining ground rules on ICE and AFGE. He and his posse of anti-union puppets ordered that when it comes time to approve or disapprove the ICE-AFGE term agreement that these ground rules should lead to the agency head will be able to disapprove the provisions/he does not like, but then implement all the other provisions. In other words, the agency head only has to implement the provisions s/he likes. But don’t take our word for it this violates law. The Authority has repeatedly held that Agency Heads cannot implement only portions of an agreement. For example,
Under Authority precedent “the agreement,” not a portion thereof, is subject to agency-head approval under section 7114(c)….Where an agency head timely disapproves an agreement under section 7114(c) of the Statute, the agreement does not take effect and is not binding on the parties. Department of the Army, Watervliet, NY and NFFE, Local 2109 and NAGE, Local R2-98 (Intervenor), 34 FLRA 98 (1989). See also AFGE and U.S. Dept. of Labor, 68 FLRA 1061 (2015)
The Authority has opined that the parties are free to implement the rest of the agreement while litigating over the allegedly non-negotiable provision, but that does not mean that the Panel can order the union to accept that. If the two parties voluntarily accept implementation of a partial agreement that amounts to them rewriting the original agreement, approving that, and implement it. However, if the Panel tries to impose that on parties would it fly in the face of its statutory obligation to only impose orders that are “not inconsistent with this chapter”? (5 USC 7119(c)(5)(B)(iii))
The law gives the union the right to insist on implementation of all the negotiated terms. Any Panel order taking that right away from the union amounts to a statutory waiver, which the Panel is not empowered to order.
Beyond that, the last time we heard from the Panel on whether it had the power to impose what amounts to a severability clause it said it did not.
After carefully considering the parties’ positions on this matter, we shall relinquish jurisdiction over the dispute. In our view, the parties have not reached a bargaining impasse over the Employer’s proposal because of the underlying question concerning the Union’s obligation to bargain. In this regard, the record reveals that the Union consistently has refused to participate in bargaining and mediation over a severability clause because it believes the issue involves a permissive subject that it is legally entitled to elect not to negotiate. While FLRA case law suggests that parties may voluntarily agree to the piecemeal implementation of a CBA, and to resume bargaining only over those provisions that are disapproved on agency head review, the Panel only has authority to consider the merits of a proposal where parties have reached a negotiation impasse.2 Accordingly, the underlying threshold question raised by the Union must be resolved in an appropriate forum, and an impasse reached, before the Panel may consider the merits of the Employer’s proposal.3 Dept. of Commerce, Patent and Trademark Office, Alexandria, Va. and POPA, 06 FSIP 109 (2007)
Ironically, Chairman Carter was a member of the FSIP when it wrote that. Maybe his memory is going too.
What the Panel has tried to do is reminiscent of what President Bush tried to do with his attempted rewrite of the labor law for Homeland Security. A federal judge rejected that effort because it also allowed agency officials to unilaterally reject provisions of an agreement and implement the rest. She wrote,
The Regulations fail because any collective bargaining negotiations pursuant to its terms are illusory: the Secretary retains numerous avenues by which s/he can unilaterally declare contract terms null and void, without prior notice to the Unions or employees and without bargaining or recourse. Under the Regulations, DHS would have the power to take any matter off the bargaining table simply by issuing department-wide directives, policies, or other regulations…. Negotiations that lead to a contract that is not mutually binding are not true negotiations. A system of “collective bargaining” that permits the unilateral repudiation of agreements by one party is not collective bargaining at all.
Thanks to the Panel’s flagrant ignorance of the law it is appointed to administer, its ground rules order does not appear to be legal from where we sit. The agency head should be wise enough to not approve it and allow the parties to go back to the table to refine the ground rules. If not, the agency may be in for a long period of litigation ending in a very, very big back pay award. The parties could agree to modify it, but why should AFGE make it that easy for the agency?
So, welcome back, Mr. Carter. While we never missed you, the appointee could have been worse. But, could you take a few moments to study the law. Maybe Trump U has a graduate certificate.