REMEMBER THIS IMPASSE TECHNIQUE
When federal sector parties bargain themselves to an impasse, they routinely get an FMCS mediator involved. When that does not generate a deal, they move on to the FSIP for a final and binding decision if the Panel cannot motivate them into a voluntary agreement. If you have ever gone that route you know that it can take months, if not a year, from the day you enter FMCS. The only alternative for those interested in a faster decisions is to hire a private neutral to provide a combination of mediation, fact-finding and arbitration. But that can cost money–a lot of money if the dispute is over a complete term contract. Given that each impasse resolution route has a serious drawback, everyone has needed a third option for a while–one that moves faster than traditional FSIP and cheaper than private assistance. NFFE”s passport unit just reminded us that there is a little used third option with the decision it got in NFFE, 2014 FSIP 89 (2015).
It reached an impasse in its negotiations over the impact and implementation issues related to the agency’s decision to require that almost all employees suddenly qualify for security clearances or lose their jobs. To make a long story short, once the case got to FSIP the parties convinced the Panel to return the dispute to the FMCS mediator, Gary Eder out of the Baltimore office, and authorize him to issue a recommendation as to how the dispute should be resolved if the parties still could not reach an agreement. If the parties refused to both adopt that recommendation, they were allowed to return to the Panel to “show cause” as to why the mediator’s recommendation should not be imposed as the Panel’s own final and binding decision. In other words, the parties and particularly the union avoided paying oodles of cash to a private neutral, and the agency probably got a decision a few months sooner than it would have had the Panel put it through its traditional process.
We do not expect the Panel to do this often, and we certainly would not do this with just any FMCS mediator. Eder is a special guy who knows his way around both sides of the bargaining table. However, it never hurts to have other options when facing an impasse. If you want to call on this one, remind the Panel of this decision when you ask.
(P.S. It will be interesting to see if the agency challenges the final decision as non-negotiable. If it does, it will likely delay its ability to impose the security clearance requirement for most of another year, with no guarantee it will win.)