PANEL CONTINUES TO IMPOSE ILLEGAL, UNENFORCEABLE (AND CLUELESS) DECISIONS
Not long ago, we wrote about the Panel exceeding its legal authority by imposing a contract clause even more onerous on the union than what the agency had proposed. But that is hardly the only example of illegal activity by the anti-union political operatives at the current Panel. Ironically, when the Panel does impose contract provisions in violation of law the harmed party, which will ALWAYS be the union under this Panel, can refuse to accept the Order and file to have it declared unenforceable. Here is how that might work.
Let’s take the case of DVA and NNOC, 18 FSIP 42 (2018) where the agency merely proposed to delete some existing contract language addressing how it would manage certain employees. Stated differently, it wanted contract silence which would have meant that it only had to follow law, rules regulations and practices in managing those employees. Rather than merely giving the agency what it requested and what the parties had bargained over, the union busting cabal at the Panel imposed the following provision:
The department has unfettered discretion to hire, manage, and implement policy concerning Contract RNs.
In other words, FSIP waived any rights the union and employees had to enforce existing rights in law, regulation, rules and practice, e.g., the civil rights acts, the prohibited personnel practices, the FLSA, etc. It even took away the union’s right to bargain when the agency made changes in working conditions.
Is this legal? We doubt it. Waivers of statutory rights are almost never mandatory subjects of bargaining. The union does not have to bargain over waiver demands any more than an agency has to bargain to impasse over permissive or illegal topics. Beyond that, the Panel imposed a provision that the parties were not bargaining over. The D.C. Circuit has ruled that it does not have the power to do that. POPA v. FLRA, 26 F.3d 1148 (D.C.C. 1994) The Panel itself has cited the court’s ruling several times in its own decisions.
In the same case, the Panel imposed an Agency proposal that the practices established by Local Supplemental Agreements would not continue in effect beyond the termination date of the term or Master contract. However, the law says that while the actual agreement is not enforceable once a termination date is reached, the practices established by the agreement continue in effect until one side proposes a change via a specific notice and any bargaining over the change is complete. Once again, the Panel imposed a provision in conflict with the law.
Continuing its disregard for the law, in Dept. of Agriculture and AFGE, 18 FSIP 032 (2018) the Panel imposed the following provision:
If an employee has any type of absence during the week, the employee cannot telework that week. Absences include, but are not limited to Holidays, scheduled/unscheduled days off, Leave and unauthorized absences.
Once again the Panel betrayed a deep ignorance (Or more likely contempt) of employment law. What it has done is vest the agency with the right to punish an employee who legitimately takes leave. For example, a qualified disabled employee who needs just a couple of hours off each week for treatment now gets penalized. An employee who has approved FMLA leave loses a benefit for exercising a statutory right. Any who employee takes leave to consult with an attorney over a civil rights charge gets punished as does the employee who chooses to work a compressed work schedule and the employee who takes authorized time off to vote or give blood. The imposed provision is grossly, overly broad and likely illegal. In fact, if the agency tries to enforce it in many situations it will be liable for back pay, attorney fees and at times compensatory damages up to $300,000. The managers enforcing the rule may also be subject to discipline.
You got to love the political hacks who come to town thinking they are qualified to do a job just because the President appointed them. They are like full employment programs for union attorneys who can make millions in fees from the illegal or just wildly stupid rules they put in labor agreements. Aside from that, they enable union leaders to portray management as unreasonable, arbitrary and capricious, which usually leads to a bundle of new members.
The law permits a party to refuse to comply with a Panel order if it is illegal. Check out 33 FLRA 426 (1988), 15 FLRA 288 (1984), 15 FLRA 564, (1984), 771 F.2d 1149 (1985), etc. (Someone should read these cases to Chairman Carter or maybe reduce the precedent to an easy to follow picture book if the English language is proving to be as much a challenge for him as it is for the guy who appointed him.) When an imposed provision violates the agency’s rights it merely disapproves the agreement or refuses to enforce the problematic clause. That forces the union to file a ULP to litigate the issue.
It is a little more complicated for unions. Most likely the agency is not going to complain when it is given the unfettered right to ignore the law of the United States or to punish the disabled or evade a bargaining obligation. So, it is up to the union to refuse to sign the Panel imposed agreement. If the agency does not file a ULP to start the litigation process, the union can file one when the agency implements the Panel order with the illegal provisions. At least that is how we at FEDSMILL.com see it, but check with a qualified attorney before you make decisions in this situation. Another option would be to wait until a specific employee’s rights are violated (or the union’s institutional rights) and then litigate that factual situation. That likely would void only the specific illegal provision rather than the entire Panel order. But it might get the union tens of thousands in attorney fees. Not long ago a union walked away with two million in fees when it won an arbitration. A third option would be to ask the FLRA to stay implementation of the Panel order. Check out IFPTE, Local 4 and Dept. of Navy, 70 FLRA 20 (2016) to begin tracing the rules on how to do that.
Member Carter is obviously having trouble keeping his contempt for unions within the bounds of the law. When he does step, stretch, or stumble over the line, unions should treat it as a gift. They should be able to void the entire Panel order (which undoubtedly will be loaded with other anti-union rulings), drag out litigation for years and hope that there is a change in Panel thinking in a couple of years.