HOW TO BLOCK FSIP FROM TAKING JURISDICTION
There are a variety of reasons why a union might want to block FSIP from taking jurisdiction over its bargaining dispute. One way is to piggyback on Interpretation and Guidance, 11 FLRA 626 (1983) wherein the Authority announced that FSIP does not have the power to take jurisdiction over an issue impacted by a pending ULP charge. For example, suppose a union submitted a broad information demand that touched on ten articles involved in a 30-article term agreement dispute. (Or an information demand that impacted ten core proposals in a 30 proposal midterm negotiations) If the agency refused to comply and the union filed a ULP alleging an improper denial of information, typically a 7116(a)(1) and (5) violation, the union would have grounds to argue that the Panel cannot take jurisdiction over at least the ten articles impacted by the information denial. The FLRA decision explained the reason for that as follows:
Section 7105(a)(2)(G) of the Statute requires the Authority to “conduct hearings and resolve complaints of unfair labor practices . . . (.)” Further, section 7118 of the Statute requires the General Counsel of the Authority to investigate unfair labor practice charges and prescribes procedures before the Authority for the resolution of such issues. Finally, section 7105(e)(2) of the Statute permits the Authority only to delegate to an administrative law judge “its authority under section 7118 . . . .” These statutory provisions have been implemented in Part 2423 of the Authority’s Rules and Regulations. Therefore, this type of dispute concerning the obligation to bargain must also be resolved by the Authority…. the Authority finds that the Panel’s authority under section 7119(c)(5)(A)(ii) to assist the parties in resolving an impasse through whatever methods or procedures the Panel considers appropriate does not include resolving questions concerning the underlying obligation to bargain.
In short, the right to information and bargain in good faith is a statutory right that a union has the right to enforce through the due process procedures of the FLRA and the courts (or arbitration with FLRA and judicial review), if necessary. The FSIP does not provide an equivalent process and therefore cannot resolve ULPs. The Panel has adopted this position twice. (See 07 FSIP 10 (2008) and 08 FSIP 72 (2008))
A parallel argument is that the Panel does not have the right to take jurisdiction over an issue the parties have not discussed, bargained over, and subjected to substantive mediation. (See POPA v. FLRA, 26 F.3d 1148 (D.C.Cir. 1994) which wrote:
Clearly, the Panel’s jurisdiction is premised on the parties being “unable to reach agreement, notwithstanding their efforts to do so.” Indeed, the Panel is obligated to “[d]ecline to assert jurisdiction in the event that it finds that no impasse exists.”….It is indisputable that the parties never bargained over several of the new proposals included in the revised package that the Union submitted to the interest arbitrator. Of these, proposals 20, 23, 24, 26, and 42 became part of Article 19. The Agency had refused to negotiate over these proposals with the Union, asserting duty-to-bargain and negotiability objections. In fact, the Union had filed an unfair labor practice charge against the Agency (which the Authority dismissed as untimely) precisely because PTO had refused to bargain. Clearly, when the interest arbitrator turned his attention to these particular proposals, the parties had never negotiated over them, let alone reached an impasse, and thus the arbitrator had no authority to award these proposals as part of the contract. Therefore, as to proposals 20, 23, 24, 26, and 42, the Authority committed reversible error in ruling that the interest arbitrator had jurisdiction to consider these proposals and in holding that any of the proposals found to be negotiable were part of Article 19 of the parties’ agreement.
The union seeking to block Panel jurisdiction strengthens its case if it refuses to talk about those 10 articles throughout negotiations and any FMCS or FSIP involvement on the grounds that the agency is blocking its right to bargain in good faith. Talking about the 10 articles gives the agency the chance to argue that despite the pending ULP there have been negotiations over them. (If the union chooses to discuss the portions of the ten articles not impacted by the information demand, it should make clear that it is doing so under protest.)
The union should also file the ULP via the grievance procedure to avoid the FLRA General Counsel quickly dismissing the case and removing any bar to FSIP jurisdiction. Additionally, the alleged ULP should substantially and directly impact the negotiations, such as a broad information demand or repeated bad behavior by the agency.
Aside from setting up a broad and substantive ULP, the union planning to object to Panel jurisdiction also must consider the various routes the dispute could take. To begin, an agency has the right at the end of negotiations to declare that it is going to implement its last best proposal in X days. Normally, that shifts the burden to the union to petition the Panel if it wishes to postpone implementation, but if the union is seeking to avoid the Panel taking jurisdiction what is the union to do? The FLRA has not addressed that yet so anything we say is just our best guess. The safest course would seem to be to file a new ULP alleging the agency is implementing without the parties having reached an impasse—or get agency agreement to amend the original grievance. There was no impasse because the agency’s denial of the information blocked any good faith bargaining—and without bargaining there is no impasse according to the court.
A union could also file with FSIP to ask it to investigate but rule it has no jurisdiction, but there is no guarantee what the Panel will do. The bottom line is to ensure the new ULP grievance is filed.
A second possible route this plan could take is that the agency petitions the Panel itself at the end of mediation. In that case, the union should object to the Panel taking jurisdiction and continue to do so even if it does take jurisdiction, i.e., refuse to discuss or address the articles or issues involved with the ULP. If the Panel issues a decision without imposing anything on the 10 articles involved in the jurisdictional dispute, it is up to the parties whether to agree to implement the changes the Panel imposed. Case law provides that agency head (AH) review is only appropriate where there is a complete agreement. (POPA and Dept. of Commerce, PTO, 41 FLRA 795 (1991).
On the other hand, if the Panel issues a decision addressing those issues involved with the jurisdictional dispute, the union should refuse to ratify any partial agreement the parties may have at that time and should protest again at the AH review stage. But once the agency moves to implement an approved agreement based on the Panel order, that would be akin to making changes unilaterally without completing bargaining, which is another ULP or addition to the original ULP. (The union could also ask the Authority to issue a stay against implementation of the Panel order. See IFPTE, Local 4 and Dept. of the Navy, 70 FLRA 20 (2016) It is not necessary to protect the union’s interests, but we are unaware of any harm it would do. A FLRA refusal to stay a Panel order has no legal relevance to the ULP.)
The remedy the union would want in all these ULPs would be a status quo ante order returning the agency to the working conditions of the prior agreement, along with any back pay, interest and attorney fees involved.
A third possible outcome is that an arbitrator rules the agency did not commit a ULP. Here, once again, there is no case law, leaving FEDSMILL to speculate. Although agencies will surely argue that unions refuse to bargain at their grave peril, it seems as if the union is only liable to return to the bargaining table and negotiate without the information. There is no reason to conclude that the agency was authorized to implement its LBO if it had declared impasse or that the Panel had the power to address the disputed issues anyway. After all, there still was no bargaining and hence no impasse.
Objecting via a grievance ULP to the Panel taking jurisdiction over the dispute while a duty to bargain ULP is pending ensures that the union can put its objection before the FLRA and courts, if necessary.
In Its 1983 Interpretation and Guidance the Authority made the following comment:
Nonetheless, the Statute itself recognizes the importance of expediting to the extent practicable the resolution of questions concerning the duty to bargain by the Authority. 5 U.S.C. 7117(c)(6). Where questions concerning the duty to bargain arise during an impasse in bargaining, the raising of such questions, …can further delay in whole or in part the final execution of a collective bargaining agreement. In this area, the Panel is to be commended for avoiding obligation to bargain problems in a number of cases and still resolving the impasses.
A Panel hostile to union interests, such as we saw during the W. Bush administration will try to use that FLRA dicta to take jurisdiction and try to moot the union’s objection. For example, it might say that even if the union had the information it is seeking the Panel would still adopt the agency’s proposal. Unions should fight that because it is nothing more than the Panel taking jurisdiction when the law provides it cannot even address an issue over which there is an obligation to bargain dispute. The only permissible Panel assistance it can provide is if both parties agree to let it have jurisdiction.