“IT’S ALIVE!”  NOT FRANKENSTEIN’S MONSTER, BUT FSIP

After months of deconstructing the existing hideous monster that plundered the L-M communities far and wide, President Biden has finished scouring the countryside for new parts, stitched them together, and sent his own creature out into the countryside.  On November 10, 2021 it showed what it intends to do with the mere L-M mortal peasants, known as the parties, and the news is neither good or bad. It is NEUTRAL and that is precisely what the two sides of the bargaining table have needed to put an end to the endless surprise attacks, litigation gymnastics, evasions, revenge, and senselessness that characterized too many L-M relationships during what we like to call the Orange Years (2017-2020). This first FSIP decision under the new Administration can be found at DoD, Texas and AFGE, Local 1004, 2021 FSIP 013 (2021). Below is a recap of the three most significant parts of the decision that all negotiators should know about.

The POPA Problem

That is what the Panel called it and if you do not know what that is you have a serious negotiator’s blind spot. In this case, the union tried to settle a dispute by submitting a revised proposal after FSIP had taken over the case. Normally, trying to narrow the gap between parties is a good move for a negotiator. But this union’s new proposal addressed a somewhat different matter than the original dispute topic over which the Panel had taken jurisdiction. The original proposal gave the union the right to immediately negotiate over any expanded bargaining authority from any perspective Executive Order. The new proposal gave the union the right to bargain over 5 USC 7106(b)(1) or permissive matters. Consequently, the Panel wrote,

This new proposal was not merely a continuation of the old provisions in the Union’s Sections 4.a. or 4.b., which provided that if a new E.O. is issued, the parties will reopen the Ground Rules agreement or the Successor CBA. Instead, the new proposal addressed the commitment to bargaining over the subjects set forth in 5 U.S.C. 7106(b)(1). Adopting a proposal where the Panel had not asserted jurisdiction of that subject matter would create a POPA concern. Therefore, the Panel will not order the adoption of that newly offered Union proposal.

The Panel explained that in a prior case the Patent Office Professional Association (POPA) also submitted during the impasse process a counter-proposal that raised a new topic not on the table when the Panel asserted jurisdiction. When the Panel designee imposed it over the agency’s objection that it had no power to take jurisdiction over a new topic, the agency refused to comply with the impasse decision and appealed to court alleging that the Panel had no power to do so. The federal court held that neither the interest arbitrator, FSIP or FLRA had jurisdiction over proposals on which the parties never bargained before impasse.

So, if you find yourself before the Panel and try to slip a proposal on to the table that addresses a topic not bargained over prior to entering the Panel process, you can expect that the current Panel will not adopt it. In our judgement there is a very small difference between the original and revised proposal and the latter is of the same nature as the former. But FSIP gets to make these calls, absent court appeals, and this case signals how slight a difference might trigger it. If a union is going to revise a proposal, it might be best to get the neutral to require a party raise a jurisdiction objection before the hearing closes or lose the right to do so later.

See POPA v. FLRA, 26 F.3d 1148 (D.C.Cir. 1994)

How to Handle Midterm MOU’s in Term Bargaining

A common agency demand during term bargaining is to demand that all existing mid-term MOUs expire once the new agreement is implemented—even though the agency neither identifies the MOUs specifically, identifies the specific changes it wishes to make in the working conditions they established, nor proposes replacement language. Frankly, it is a bad faith proposal because it does not contain the elements of a legally sufficient specific notice of change. Without saying that, the Panel effectively treated it that way by imposing the following:

The party seeking to make changes to a written MOU, MOA, or past practice, will provide any written MOU, MOA or past practice, along with the exchange of modifying proposals provided in accordance with Para E.1 of these Ground Rules… Where there is no conflict with the new CBA, written MOUs, written MOAs and written past practices in effect upon the execution of the new CBA will remain binding on the parties, consistent with their terms.

 Official Time Benchmark

Panel decisions do not set binding legal precedent that other parties (or the Panel itself) are obligated to follow. The Panel is free to make a totally opposite decision in similar future cases. But Panel decisions can be treated as significant benchmarks that parties should use in crafting (and arguing for) their proposals.

In this case, the Panel granted the union official time to prepare its opening proposals for term negotiations and added additional time for the union to review the agency proposals once submitted. FSIP imposed the following two provisions.

In support of Para E, Section 1, the Union shall be provided a bank of official time to prepare for the start of negotiations.  That bank shall be up to sixty (60) hours per Union representative, limited to the number of union officials participating in negotiations on official time.

In support of Para E, Section 5, the Union shall be provided a bank of official time to review the Agency’s proposal’s research, and provide counter proposals.  That bank shall be up to eighty (80) hours per Union representative, limited to the number of union officials participating in negotiations on official time.

Parties should keep those benchmark amounts of official time in mind when drafting their own impasse positions.

Overall

We can think of better ways to have resolved each of these disputes that would have left each party in an improved position, but all-in-all what the Panel did is reasonable—and we have not gotten that kind of decision-making out of the Panel since the opening days of 2017.