IS THE FSIP LEGALLY STAFFED? PROBABLY NOT.
If Presidents ignore one tiny clause in the statute, the FSIP can be used as a political club to punish unions and the employees who support them. After all, the President can draw all the appointees from one political party, none have to be confirmed by the Senate, there is no statutory criteria for its decisions to meet, courts cannot review its orders, it need not give the parties due process hearings before making decisions, each can be fired by the President for no reason at all and without recourse, etc. Virtually every check and balance mechanism in the American legal system was withheld from the design of the Panel. Consequently, Trump (and before him Reagan and W. Bush) weaponized it by staffing it with right-wing, political ideologues with long records fighting unions. The only thing potentially stopping the Trump’s Panel from essentially suspending the statutory collective bargaining system during its reign is the tiny statutory clause that requires its members be appointed, “…solely on the basis of fitness to perform the duties and functions involved….” (5 USC 7119(c)(2)).
Most jurists would say that the clause is not just a bunch of surplus words lacking any meaning or force. It must mean something and as statutory language it could be enforceable by the courts.
One reading of the clause suggests that Trump violated law by appointing people all from one political party. If appointment to the Panel is to be driven “solely” by fitness, doesn’t it strain credibility to think that party affiliation was not a factor other than fitness? A law suit and a handful of depositions would probably uncover pretty strong evidence that Trump’s first–and likely only criterion–was political affiliation.
Another glimpse into the meaning of the clause is the word “fitness.” Again, it can’t be read as merely mindlessly tossed into the law without any meaning, but it also lacks any direct definition. One has to turn to the rest of the statute to find the meaning or drafters’ intent. Fortunately, that is not hard to do.
No less an authority than the Congress’ General Accounting Office has repeatedly written that the FLRA is to be a neutral body, e.g.,
“The Federal Labor Relations Authority (FLRA) is an independent, bipartisan, and neutral third party for resolving labor-management relations disputes in the Federal Government. Created by President Carter’s Reorganization Plan…This change is consistent with the Congress’ intent in establishing a neutral and in- dependent third party for resolving disputes in the Federal Labor Relations program.
Even the President’s OPM understands the Panel is to be a neutral body, e.g.,
“Neutrals Involved in Administering the Federal Service Labor-Management Relations Statute” https://www.opm.gov/policy-data-oversight/labor-management-relations/reports/labor-management-relations-in-the-executive-branch-2014.pdf
President Carter who sponsored the statute in the late 70’s interpreted the clause to mean that the Panel was to be staffed with accomplished labor-management neutrals. All seven of his appointees were certified neutrals and five of the seven were members of the National Academy of Arbitrators, certifying their superiority among neutrals.
Even before Carter when labor relations were controlled by an Executive Order, President Nixon also filled nearly all FSIP seats with members of the National Academy of arbitrators. Nixon’s thinking most likely rested on the recommendations of his Secretary of Labor, George Schultz who stressed the need for the Panel members to be neutrals.
The Schultz committee recommended the establishment of an FSIP of three members and emphasized that the Panel should be “an impartial body, each of whose members will be concerned with the public interest rather than with the special interests of either party to an impasse.” In July 1970 the White House announced the appointment of seven members to the FSIP, none of whom was affiliated with either management or labor.
Given that Congress saw no need to fiddle with the make-up of the FSIP in the years leading up to the 1978 creation of a statutory FSIP, it is more than reasonable to conclude that it intended its FSIP to operate the same way.
Aside from the opinions of the GAO and OPM as well as the actions of the two Presidents who formed the FSIP, another indication of what Panel members are to be fit for is the work it does. As the Legislative Branch’s GAO has written, the Panel’s techniques of those used almost exclusively by neutrals.
Various dispute resolution techniques employed by FSIP include mediation, fact-finding, written submissions, binding arbitration, and mediation-arbitration (med-arb) by FSIP members and staff as well as by outside arbitrators. https://www.gao.gov/assets/160/150983.pdf
Given the explosion of arbitration used by private employers in recent years, courts at all level have been scrutinizing them and frequently voided the processes when the arbitrators were not neutral. A lack of neutrality has been considered unconscionable and unenforceable. (See Hooters of Amer., Inc v Phillips, 173 F.2d 933 (4th Cir. 1999)). None of the current Panel members would qualify to be certified as arbitrators under the rules of either the American Arbitration Association or the Federal Mediation and Conciliation Service.
Based on the above, it appears that the current Panel does not meet the statutory criteria for appointment, should be disbanded, and its decisions voided. This Panel and others similarly staffed with political ideologues have shown how reckless and vindictive they can be; concern about the potential for abuse is not merely theoretical. A Panel staffed by W. Bush barred a union from having employees sign the government’s own forms to join the union so long as they were on government property. (DHHS, Baltimore, and AFGE, Local 1923, 02 FSIP 167 (2004) [Article 11]) The current Trump Panel faced a dispute where the union wanted three days a week of official time and the agency offered it two days. The Panel overrode the judgment of even the agency leaders and only gave the union one day a week, thereby asserting that it knew better than the agency leadership hierarchy what was best for the agency. (Dept. of Ag. and AFSMCE, 17 FSIP 60 (2018))
Finally, forcing the President to appoint from among accomplished professional neutrals does little harm to his office. He can still fire them at will, the courts will still be barred from reversing the Panel, he will not become entangled in the oft-chaotic Senate confirmation process, and due process will still not be required. At worst, the President will; have to live under the interpretation that Presidents Nixon, Carter, Clinton and Obama did, all of whom staffed the Panel almost exclusively with recognized professional neutrals.