THIS FLRA DECISION IS POPPYCOCK, DRIVEL, TWADDLE & TOSH

A union grieved to block implementation of a new term agreement, portions of which were imposed by FSIP.   FLRA ruled that the union’s grievance was defective because it was “directly” challenging a Panel decision when only “indirect” challenges are permitted. (See FEA-SR v. FLRA)  The headline of this post tells you what we think of this decision.  Here is why.

1. To begin, there is no mention of either the direct or indirect concepts in the statute. The FLRA not only fabricated the distinction, but it also ignored the plain and ordinary meaning of the word direct. A “direct” challenge would be to file a grievance, ULP or other action against the Panel as a named party; this union filed grievances against the agency which involves the Panel’s decision secondarily.
2. FLRA imposes the direct versus indirect distinction without explaining why the distinction matters. In its brief to the court, FLRA wrote, “Challenging the circumstances surrounding a Panel decision…” is allowed, but “challenging the validity of the Panel decision itself…” is not. That leaves the impression that a party can only challenge the legality of a FSIP order if the other bargaining party was responsible for the Panel acting illegally, e.g., bargaining in bad faith. That makes no sense because the Panel is fully capable of acting illegally on its own motion without any party prompting. Consequently, shielding the Panel decisions from challenge by a union serves to give the Panel the unassailable right to violate law. It could decide that union negotiators will only get half the official time agency negotiators get to bargain or that the agency has the right to veto the union’s choice of representatives. The Authority’s logic-leaping analysis reminds me of AFGE v. FLRA, Case No. 19-1069 (D.C. Cir. June 9,2020) where the court reversed the FLRA because, “the Authority fails to explain the differences between the terms or how the alleged differences matter….”
3. Additionally, FLRA offers no explanation of what is included in the phrase “circumstances surrounding the Panel decision.” Why can it not include actions an agency or agency head takes after issuance of the Panel decision to implement a legally defective Panel decision? After all, law makes the agency head responsible for disapproving agreements illegal for any reason. FLRA currently recognizes that it violates 7116(a)(6) if an agency fails to implement a legally compliant agreement.  Consequently, is it not axiomatic that a union can challenge an agency (and in the process the Panel) if the agency implements a legally defective agreement? This failure to explain calls to mind POPA v. FLRA, 26 F.3d 1148 (1994) where the court overturned the Authority because, “Neither the parties nor the court have the faintest idea what this decision means….The Authority’s position in this case is utterly irrational….”  (That decision, by the way, involved a federal court at the request off an agency overturning a portion of a FSIP appointee’s ruling as illegal.)
4. If the statute was to prohibit what the Authority perceives as a “direct challenge,” it would have given the Panel the power to “Take whatever action is necessary,” omitting the remaining eight words of 5 USC 7119(c)(5)(B)(iii). But it did not. That statutory section went on to include a two-prong obligation of the Panel that its actions not be “…inconsistent with this chapter to resolve the impasse.” Stated differently, it may only address matters at impasse and when it does do so legally. That is black letter law which overrides any fantasies about what the Panel should be or can do. Alternatively, statute could have included two phrases that FLRA recognizes as conveying sole and exclusive (unchallengeable) power, i.e., “without regard to the provisions of other laws” and “notwithstanding any other provision of law.”  See AFGE, Local 3295, 47 FLRA 884, 895 (1993) and AFGE and Dep’t. of Veteran Affairs, 71 FLRA No. 76 (2019). The FLRA cannot read the statute to bar challenges to the legality of  FSIP decisions under the wording of 7119(c) when it demands far more unambiguous wording before it recognizes that an agency’s decision may not be challenged. To do so is disingenuous and arbitrary. It smacks of granting the Panel Papal-like infallibility.            Additionally, the D.C. Circuit long ago recognized that “the Impasses Panel is not expert in the laws, regulations, practices, and procedures of each governmental agency, and so is not necessarily equipped to decide…” those issues. AFGE v. FLRA, 778 F.2d 850 (1985)
5. The requirement that agreements be legally developed and written is the most oft-repeated mandate expressed in the statute. (See sections 7103, 7114, 7116, 7117, 7119, and 7122.) That redundancy suggests the legality of an agreement, whether written by the parties or with Panel intervention, is the foundation of our labor law.                Indeed, law permits agency heads to reject Panel decisions under 7114(c), irrespective of whether the illegality is due to the union’s behavior, its own agency negotiators, or the Panel’s own initiative.  Therefore, one must ask under what authority can FLRA block a union’s ability to similarly challenge the legality of a looming agreement irrespective of whether the bargaining agency or the Panel was responsible for the illegal provision or action? The impact on implementation of a new agreement is the same, i.e., it is not implemented until the legal issue is settled and if the party raising the challenge was wrong the other party can demand retroactive implementation of the agreement.
6. Title 5 USC 7116(a)(8) makes it a ULP to violate any provision of the labor law. 7114(c)(2) bars agencies from approving agreements tainted by any illegality, no matter who is responsible for it.  Together they provide an unobstructed path for a union to challenge an agency move to implement an agreement that does not comply with law or government-wide regulation even if the Panel alone is to blame for the legal defect.
7. Similarly, it is truly absurd for the Authority to hold that the union can effectively challenge a FSIP order by refusing to implement the agreement and waiting for the agency to file a ULP. No agency in its right mind should ever file a ULP if the union refuses to sign and implement a Panel-imposed agreement because of a union-damaging illegality.  The far, far better course is for the agency simply to implement the agreement and leave the union without an appeal route. The FLRA has created  the absurd situation where the union can only contest an agency implementing an illegal agreement if the agency gives it permission by filing a ULP against the union.
8. The Authority’s brief to the court describes how a Panel decision triggers execution of the agreement which in turn triggers the 30-day agency head review process which typically ends in implementation of the agreement. The brief makes it clear a union has no opportunity to sign the agreement or otherwise refuse to allow implementation. Together they make 7116(b)(6) useless surplusage because a union could never refuse to comply with a Panel decision in this Authority’s world vision. That should raise some serious questions about whether the Authority has a unified vision of the post-FSIP agreement process.                                                                                                                    Moreover, the statute states that the parties can agree to add an additional step to the post-FSIP bargaining process. (See 7119(c)(5)(C) and DOT, FAA and AFSCME, 59 FLRA 491 (2003))  And case law makes it clear that agency head review occurs after union member ratification of the agreement, which includes those agreements partially written by the Panel. If a union has the option to not ratify such an agreement, thereby returning negotiations back to day one and the likely need to settle on new ground rules, is it not less disruptive to recognize that the legality of Panel decisions can be challenged by the union just as an agency can do?
9. The Agency and the Union in this case implemented ground rules stating that “[o]nce agreement is reached on all proposals/provisions of the [successor MLA], and it is signed, the agreement will be formally executed (signed and dated) and submitted for agency[-]head review.” Under what authority does FLRA have the right to ignore that clear and unambiguous obligation in the parties’ agreement. As just noted, 7119(c)(5)(C) makes the formal signing of an agreement after FSIP rules permissible. Indeed, 7114(b)(5) makes signing of an agreement a mandatory part of the statutory bargaining process, not an inconvenience as the Authority’s brief to the court suggests.
10. In its brief to the court FLRA points to the decision in Council of Prisons v. Brewer, 735 F.2d 1497 (D.C.Cir. 1984) as justifying its position that FSIP decisions are not directly appealable. However, the Brewer decision involved a union trying to go directly to federal court to challenge a FSIP ruling without first going to FLRA or charging the agency with a statutory violation. That is not this case.  This union did not petition a court; it filed a grievance which is very broadly defined in law.  Indeed, although statute excludes five kinds of grievance claims (5 USC 7121(c)), it does not exclude the right to challenge agency actions if they try to implement illegal FSIP orders, i.e., violative of statute or government-wide regulation.
11. The Authority has also recognized that there are situations where a union can directly petition it to stay a Panel decision where the Panel “ruled on an admittedly difficult legal question and when the equities of the case suggest that the status quo should be maintained.”  (See IFPTE, Local 4 and Dept. of the Navy, 70 FLRA 20 (2016)) There was no mention that the Panel’s objectionable action had to be something one of the parties urged it to take, nor even more significantly did the FLRA explain how a union could pursue a stay if it has no right to challenge the legality of a Panel order.  Again, if that kind of challenge is allowed, why are the union’s challenges in this case so damaging to the Panel? FLRA owes the practitioner community an explanation.
12. FLRA has long allowed arbitrators to review the legality of FSIP a (See also Dep’t of HHS, Md., 36 FLRA 655, 669 (1990)) Why should that power be limited merely because it was the Panel’s action alone that rendered its decision illegal or because the union leveled a 7116(a)(8) charge rather than a 7116(a)(6)? In NWSEO v. FLRA the court ruled that if union appeals an arbitration decision to the court of appeals that contains a ULP issue the court is free to review any issue in the case—even those not involved in the ULP. Why should the court be barred from reviewing the legality of FSIP’s procedural and substantive actions in a case so long as a ULP has been alleged? Would that be substantively different than what the court did in AFGE v. FLRA, 778 F.2d 850 (1985)?

This decision makes it clear that the FLRA lacks a unified vision of the post-FSIP process. It does not explain how 7119(c)(5)(C) options can be exercised, nor how a union can henceforth get a stay of an FSIP order which FLRA has granted in the past, nor whether it is taking away the union’s right to ratify or sign agreements partially imposed by the Panel, nor why an agency head’s disapproval does more damage than a union-filed ULP contending improper FSIP actions, nor why a Panel action can be challenged if it was requested by a bargaining party but not if the Panel erred on its own, nor why the agreed upon post-Panel steps outlined in a ground rules agreement are of no consequence, nor…

We are surprised and disappointed that other unions have not entered this case as amici to signal the court that this is a very big issue. If a future Panel on its own motion denies union reps the right to official time while negotiating or the right to attend some formal discussions or the right to appoint its own representatives or the right to delay implementation of midterm changes until bargaining is complete or the right to dues check-off there is nothing a union can do if the FLRA’s ruling in this case stands.

The correct reading of the statute is that a union should be able to oppose execution and/or implementation of an agreement containing some FSIP-imposed provisions because something in the agreement was arrived at illegally or is illegal on its face. Allowing unions to challenge that through 7116(a)(1) and (8) ULPs or ULP grievances, whether you call that direct, indirect or a little of both is irrelevant. It is a way to ensure only legal agreements are implemented when other paths are not available.