FLRA SMACKS DOWN FSIP ON “TENTATIVELY AGREED” ISSUES
On May 22, the Authority told FSIP that it does not have the power to order the parties to implement those issues tentatively agreed before they came to the Panel to settle their unagreed issues. The Panel has occasionally ordered the parties as part of the FSIP decision on the unagreed issues to implement all the previous tentative agreements along with the provisions it has ordered. The Authority noted that even though the statute says the Panel can “take whatever action is necessary,” that power is limited to the parties unagreed or impassed issues. In a simple world the parties lump their tentatively agreed articles with those newly settled by the Panel, send the bundle forward for agency head review, and implement the new deal about 30 days later. But the world can get complex and we want to talk about what this new decision means for actual practitioners. Brace yourself, it gets messy.
Let’s assume the parties are renegotiating a term agreement and signed ground rules saying that “Once all issues are agreed, the union will have 35 days to ratify the agreement. If no vote is held in 35 days, the agreement will be considered executed on the 36th day.” Now assume that the parties reach agreement on every article except one, which goes to the Panel for a final and binding order. Finally, let’s assume the Panel issues its order on March 1. The normal rule is that agencies have 30 days from the date of the Panel order to exercise agency head review. That would make the entire agreement effective by April 1—UNLESS THE UNION EXERCISES ITS OPTION UNDER THE GROUND RULES TO RATIFY.
If the union sends the agency a note on March 2 saying its wishes to ratify the agreement, nothing in the law prevents it from holding a member vote on the entire agreement. That is right. The members get to vote their acceptance of the Panel decision as well. For example, suppose the one issue the Panel decided had to do with Performance Awards and it was terrible for employees. Employees merely vote FOR or AGAINST ratification of the entire agreement. They do not vote article by article. Unless the union takes unusual steps, there is no way to determine whether the agreement was rejected because of dissatisfaction over the Panel order or something else. In either case, the union gets to reopen negotiations over the entire agreement. (See 25 FLRA 579 (1987) and 46 FLRA 1404 (1993)) (Of course, if the union waited longer than the 35 days allowed in the ground rules, it is stuck with implementing the entire agreement about 30 days after the 35th day if the agency head approves it.
We can’t think of an existing piece of case law or statute that would enable the union to demand to the point of impasse a change in the Panel’s Performance Award issue. The FSIP Order would remain in effect unless both parties agreed to ignore it or the Panel granted a reconsideration. Reconsideration is unlikely unless there is a change in the political make-up of the Panel or some unusual circumstances. But certainly nothing would stop the union from demanding alternative compensation for the anti-employee award decision or even sending a strong message that if the agency voluntarily sweetened the award language a quick deal would follow.
Thanks to the Authority (or at least those two old Trumpettes known as Kiko and Abbott) clarifying the limits of the Panel’s jurisdiction, a light has been shined on a way for unions to hold up any anti-employee Panel decision and take a shot at compensating for or changing the Panel’s distasteful decision. In an ironic way, this gives the union the chance to reconfigure the deal just like agency head review has given management the power to do that for decades.
This is just our opinion, but agencies will probably only feel the pain of this approach during those times when the FSIP is composed of anti-employee, anti-union, right-wing zealots—much like we have now. (In fairness, this Panel has at times, but they are rare, surprised us with reasoned, bias-free decisions rather than the usual bile flowing from it.) The more politically neutral FSIP decisions are the less the need for the union and employees to submarine the entire term negotiation effort and send everything back to day one.