PANEL COVERS OVER ILLEGAL MANAGEMENT MANEUVER
FSIP is quickly stacking up examples of its extreme bias on behalf of management. Its latest stunt was to cover up, gloss over, steer around, compensate for, etc. an open and shut agency violation of law. FSIP wrote in its decision, “Throughout a portion of the parties’ negotiations, Management offered a transition MOU that largely mirrored the Union’s proposal as part of its final offer with little controversy.” But the agency then withdrew the proposal when FSIP took over the case. The proposal in question would have established a transition period for employees to meet newly established physical fitness goals before they were considered unable to perform the duties of their jobs and terminated. That was an open and shut case of illegal regressive bargaining, but that barely bothered the President’s appointees. Regressive bargaining occurs when a party withdraws a proposal from the table and replaces it with something worse for the other party without a good explanation. “A party’s withdrawal of a tentative agreement or a previous proposal, without good cause, is evidence of bad faith bargaining, but withdrawal does not establish per se an absence of good faith.”, Army and Air Force Exch. Serv., 52 FLRA 290, 304 (1996). See also Chicago Local No. 458-3M v. NLRB, 206 F.3d 22 (D.C. Cir. 2000).
Rather than force the agency to reinstate that proposal, the Panel merely wrote, “It is not clear what changed since the end of mediation or September 12 to warrant Management’s deviation. As such, we do not give credence to the idea that the proposal should be rejected because of bargaining history.” No mention of FLRA case law, no mention of the long-term destructive impact this has on an effective bargaining relationship, and no adverse judgment. The Panel merely overlooked the violation and gave the union half of the transition period management offered right up until it entered impasse. If it had acted consistent with the statute, it would have imposed the full transition period that the agency had previously offered.
This is yet another case where the Panel may have thought it protected the agency, but actually created a big liability for it. If the union in a situation like this chooses, it can file a ULP charging the agency with bad faith bargaining and seek an order from the FLRA or courts that retroactively imposes the full transition period the agency offered when the impasse began. That could lead to the reinstatement of employees suspended or terminated at the end of the shortened transition period and that, in turn, could lead to attorney fees for the union and a black eye for the agency—or more. Given that the agency proposed this change in 2012 and the Panel only decided the dispute in 2018, six years later, it seems very short-sighted to have handed the union an argument that could postpone implementation of the new fitness standards until well into the next decade. Check out PFPA and FOP, 17 FSIP 088 (2018) for the sad details.