VITALLY IMPORTANT THINGS TO KNOW ABOUT FSIP’S POWERS
The statute establishing the Panel gives it the power to “take whatever action is necessary” to resolve an impasse. (5 USC 7119) However, often the Panel ignores the fact that there are a lot of limitations on those five words. Some deal with whether the Panel has the power to take jurisdiction at all over a dispute. Other limitations apply to the content of the final order the Panel can issue, and still others address the enforceability of a final order. Because the Panel tends to ignore these limitations, it is up to the harmed party to mount a proper challenge. Here is a quick review of all those limitations.
The law begins by noting that the Panel can only get involved when the parties are at “impasse.” (5 USC 7119(c)(1)) That raises the question of what is an impasse.
The Panel Cannot Take Jurisdiction Over A Dispute Where the Parties Have Not Adequately Bargained Over All Legally Negotiable Matters – The U.S Court of Appeals once voided a neutral’s Panel-sanctioned final order because it found that the parties had not yet discussed some of the issues the Panel-designee ruled on. POPA v. FLRA, 26 F.3d 1148 (DCCir. 1994) In the court’s eyes, there was no impasse without prior bargaining over all the issues, which is consistent with the Panel’s own definition of an impasse, i.e., “that point in the negotiation of conditions of employment at which the parties are unable to reach agreement, notwithstanding their efforts to do so by direct negotiations and by the use of mediation or other voluntary arrangements for settlement.” (5 CFR 2470.2) In this case, the parties had bargained over the performance appraisal article, but not specific proposals that were newly added to the original ones.
Moreover, it is fair to assume that the required discussion cannot be some drive-by, shout out from the agency that it rejects the union proposal or vice versa. There must be adequate back and forth between the parties on anything going to the Panel. The following cases offer a good picture of what that means beyond the statutory mandate to approach bargaining with a sincere resolve to reach agreement: 16 FLRA 217 (1984), 32 FLRA 855 (1988), 36 FLRA 524 (1990), 53 FLRA 1161 (1998), and NLRB v. Jacobs Mfg. Co., 194 F.2d 680 (2nd Cir. 1952) If a party has refused to bargain consistent with the legal criteria, the harmed party can file a ULP which should block Panel jurisdiction. After all, the parties cannot be said to have completed bargaining if it was not good faith bargaining.
Additionally, the law says that the FMCS must address issues before the Panel can rule on them. (5 USC 7119(b) “If voluntary arrangements, including the services of the Federal Mediation and Conciliation Service or any other third-party mediation, fail to resolve a negotiation impasse….” Although there is no case law on this beyond the POPA v. FLRA case above, it seems logical that FMCS must review each issue as well, not just discuss a handful of them and call it quits. Typically, the harmed party would have kept a daily record of what was discussed when in mediation and shared it with the other one each day so there is a factual record of whether there was adequate mediation.
The Panel Cannot Take Jurisdiction Unless All the Legally Negotiable Issues Are Before It – An agency would have a tremendous advantage if it could push off the bargaining table any union proposal it did not like, leaving only the agency’s proposals before the Panel for resolution and implementation. That is called piecemeal bargaining and the federal courts have widely declared that a dispute involving piecemeal bargaining cannot be considered at impasse. Consequently, the Panel cannot get involved with one until all obligation-to-bargain questions are resolved. Interpretation: Power of FSIP…, 11 FLRA 626 (1983).
However, the Panel tends to ignore legal niceties like this one and rule on all the other issues so that those resolved issues can be implemented. If it does produce a partial decision, it is up to the harmed party to challenge its legality. The Panel is ignoring the fact that rock solid cased law provides that absent mutual consent of the two parties, an agreement on only some or even most of the issues under negotiations is not ripe for agency head review nor ratification. there is not yet a meeting of the minds on the entire document.
The Panel Cannot Take Jurisdiction Over A Bargaining Dispute That Involves Certain Kinds of Negotiability Disagreements – FLRA lets the Panel address some bargaining impasses where an agency has declared a union proposal non-negotiable, e.g., it violates 5 USC 7106(a). But, it can only do so if the Authority has ruled on a substantially identical proposal. If not, FSIP must step aside until the negotiability dispute is resolved by FLRA. (DoD, DDESS and ACEA, 71 FLRA 359 (2019)) Of course, if the union does not object to the Panel taking jurisdiction, the Panel likely will under its unwritten policy of ignoring legal niceties.
It is up to the harmed party to push back with everything it has if it believes the negotiability dispute should be resolved by FLRA. That includes challenging the legality of the FSIP Order once issued. After all, if FSIP addresses the issue, it can say it is not even worthy of consideration and there is no formal FLRA or judicial review potential of that decision. The union loses the benefits of the statutory negotiability process.
The Panel Cannot Take Jurisdiction Over a Bargaining Dispute Involving an Obligation to Bargain ULP Allegation – If either party has violated its obligation to bargain in “good faith,” the Panel must step aside until that dispute is resolved. This could involve an agency’s refusal to provide the union information it is legally entitled to, an agency negotiator having legally inadequate authority to bargain, limitations from higher-level authorities on agency negotiators, an agency wrongly refusing to discuss a matter claiming it is covered-by a prior agreement, etc. If the bargaining is tainted by bad faith bargaining, the taint must be addressed and removed before the Panel can act. To put it another way, the parties have not met the obligation to completely bargain a matter if the bargaining was bad faith bargaining.
11 FLRA 626 (1983), which is the most important document on this point, contained a slice of dicta that seemed to leave the door open to FSIP taking some action in this situation, i.e., “where questions concerning the duty to bargain arise during an impasse in bargaining…the Panel is to be commended for avoiding obligation-to-bargain problems in a number of cases and still resolving the impasse.” The Panel sometimes cites this provision to wade into an obligation dispute, but it seems to us that there must be limits to that. If the Panel persuaded the parties to voluntarily resolve the ULP and the impact proposals, we see no harm to the fundamental FLRA holding. But if it imposed a solution against the will of a party as in HUD and AFGE, 85 FSIP 14 (1985), it goes too far. That would permit it to avoid the FLRA limitation altogether.
For example, if a union has been illegally denied information necessary to bargain over core provisions, the Panel cannot “avoid” the ULP obstacle by pronouncing that it would not adopt the union proposal(s) even if it had the information. That denies the union the statutory due process of a ULP proceeding as well as a remedy that could have returned bargaining back to the point where the information was first denied.
Dept. of Comm., NWS and NWSEO, 87 FSIP 9 (1987) and Dept. of the Navy, Norfolk, VA and MTC, 92 FSIP 72 (1992) shows the Panel rejecting jurisdiction because the union raised objections based on the wording of an agreement the parties had and sending them back to grievance-arbitration to resolve. The Panel’s reasoning, like the pending ULP hurdle, was that it does not have the power to interpret existing agreements that relate to whether a party even has an obligation to bargain or bargain over a certain proposal.
The Panel Cannot Take Jurisdiction Over a Dispute Only to Return It To FMCS With a Time Limit– There is no FLRA precedent on this yet, but it seems to make common sense. At times, FSIP’s initial investigation leads it to conclude that the dispute is not yet ripe for its impasse assistance, but needs more mediation or negotiation. That is fine, but it does not mean that the Panel can return the dispute to FMCS with an order that the parties complete all further bargaining in 10, 20 or 45 days or meet any other substantive restriction. If the case is not at impasse, FSIP has no authority to impose any time limit on the parties. It can impose rules only when there is an impasse. (See DOJ and AFGE, 00 FSIP 142 (2000) for another example where the Panel had no power to impose the order it did on the agency given that it had rejected jurisdiction.)
In addition, under statute the parties are entitled to bargain at reasonable times and it is up to them and/or FLRA to conclude what is reasonable, not the FSIP.
Decision Content Limitations
The Panel Cannot Issue An Order That Is Inconsistent With Law – Remember those five words empowering the FSIP, i.e., “take whatever action is necessary?” Well, they are followed by a very important limitation which the current Panel tends to ignore. FSIP can only take action that is “not inconsistent with this chapter to resolve an impasse.” (See https://fedsmill.com/piece7237-2) Therefore, it stands to reason that the Panel cannot engage in any of the activities that qualify as bad faith bargaining for an agency, e.g., it cannot impose non-mandatory subjects of bargaining, act outside its jurisdiction, address covered-by issues, allow workplace changes before bargaining is complete, etc.
The Panel Cannot Retroactively Modify A Prior Agreement – Although there is no hard precedent on this yet, it is only logical that the Panel cannot retroactively change the terms of a prior agreement unless both parties agree. Each has the right to claim that the matter is covered-by a prior agreement that was signed and implemented and therefore by definition “not at impasse.”
The Panel Cannot Order Adoption of Tentative Agreements – If the parties have reached tentative agreement on all but 5% of the disputed issues and send just those few to the Panel for determination, neither side can ask the Panel to sweep into its jurisdiction all the tentative agreements and order them adopted as is. Those issues are not at impasse and therefore not within the Panel’s jurisdiction. (See DoD, DDESS and ACEA, 71 FLRA 359 (2019))
Moreover, the word “tentative” can mean many things. Are the agreements binding subject only to the production of a FSIP decision, or subject only to agency head approval, or subject to ratification, or even subject to the substance of the Panel decisions? That is for the parties to decide via a ULP or ground rule grievance, not FSIP.
The Panel Cannot Exceed the Scope of the Dispute Presented – The current FSIP entered a dispute where the union was asking for three days a week of official time and the agency was offering two days. It resolved the dispute by rejecting not only both parties’ positions, but also anything in between them. The Panel gave the union only one day a week of official time. U.S. Dept. of Agriculture, and AFSCME, Local 3870, 2017 FSIP 06 (2018). Although there is no current precedent holding that illegal, that does not mean it is within the Panel’s powers.
If the Panel can impose a ruling outside the scope of the last best positions presented to it, what is to stop it from adopting the agency’s two-day formula– but also forcing it to pay the entire cost of arbitrations to compensate or even more absurd from giving the union five days a week of time and free arbitration? Surprise! Surprise! (For all the Panel knows, the agency would have to delay formal meetings and investigatory interviews because the union reps did not have enough time to respond promptly.) Permitting this carries the potential for chaos and disrupting the foundational relationship between the parties—not the stability and repose the statute contemplates
Limiting disputes to the scope of the issue is a vital part of determining whether an arbitrator or ALJ has exceeded her authority as well as limiting proposals that can be placed on the bargaining table. (See FLRA v. U. S. Dep’t of Justice, 994 F.2d 868 (D.C. Cir. 1993) There is no reason why the same concept should not apply to FSIP powers, especially when there is no reason the Panel needs the power to impose provisions outside the boundaries set by the parties.
Moreover, if the Panel was permitted to wander off into ideas it thought appropriate outside the scope of the dispute as bounded by the parties, then bilateral collective bargaining becomes trilateral, which is a totally different animal than bargaining between one exclusive representative and one agency. Given that this third party believes, as it did in the two versus three day dispute, that it does not even have to tell the parties in advance of closing the hearing the alternative it is contemplating, the parties have no way to assessing the risk of submitting the dispute to the Panel. It is one thing for a union to conclude that the worst it can do is two days of official time as offered by the agency. It is another thing by many degrees for it not to know whether it might get one day, no days, or even no days and lose other rights not even involved in the impasse.
This also seems to fly in the face of the court’s logic in POPA v FLRA, above, because it permits the Panel to impose contract provisions that the parties never bargained over or bargained over and discarded from further discussions. (So much for the union having specific notice of the change the agency wants to make or a chance to request information relevant to the proposal FSIP is secretly contemplating.)
The Panel Cannot Waive a Party’s Statutory Rights – Just as the Panel cannot impose a provision that conflicts with the management rights provision of law spelling out issues that are non-negotiable, it cannot take away any other statutory right. That is what is meant by the 7119 requirement that its actions be “consistent with this chapter.” Unions also have a number of statutory rights that the Panel cannot take away. For example, the union has a right to statutory notice of and bargaining over mid-term agency changes before they are implemented. Consequently, the Panel does not appear to have the power to permit an employer to unilaterally set wages where they are otherwise negotiable unless the union has agreed to make the waive of that right to bargain wage changes negotiable. See https://fedsmill.com/thugsatfsip6932-2
Panel Decisions Are Subject to Membership Ratification – If the union has notified the agency that it reserves the right to ratify the agreement, the union normally has the right to submit the Panel order to ratification as part of the larger agreement. For example, if the Panel imposes five sections of a much longer agreement, the union is entitled to ratify the entire agreement—just like an agency head has the right to review the entire agreement rather than portions of it. Nothing stops the members from voting down the agreement the Panel provisions are part of and sending the parties back to the bargaining table. Under law they could vote it down because of anything, e.g., a punctuation error, excessive use of the passive voice, or dangling participles. The union does not have to reveal why the agreement was rejected and often will not know itself what motivated each voter.
If an agreement is rejected, the union has the right to demand the agency return to the bargaining table and try again—even if that means negotiating a new set of ground rules for this second round of bargaining and taking an entirely new approach to core articles. (See Bureau of Census and AFGE, 17 FLRA 667 (1985) and Dept. Of Air Force, Griffis and AFGE, 25 FLRA 579 (1987))
Panel Decisions Are Subject to Agency Head Review – Although Panel decisions are legally final and binding orders, agency heads have the authority to review them and the rest of the agreements they are part of. If the agency head disapproves even a single word in the agreement, whether it was imposed by the Panel or not, no part of the agreement can be implemented, absent the mutual agreement of the parties to permit that. Dept. of the Interior, NPS, Yorktown, VA and NAGE, Local R4-68, 20 FLRA 537 (1985)
Instead, the parties are to return to the bargaining table. Either side can insist on limiting further negotiations to fixing the single disapproved word, demanding to restart bargaining on the entire agreement from the beginning, or something in-between.
FLRA Can Block a Panel Final Order With a Stay – Don’t expect the Authority to do this often, but is has been done. See IFPTE, Local 4 and Dept. of the Navy, 70 FLRA 20 (2016) Normally, a union would just refuse to ratify an agreement with a Panel imposed provision it finds to be illegal, but there could be times when the union might want to do both.
Panel Orders Can Be Challenged As Illegal Even After They Are Implemented – If the Panel imposed a provision that violates law or government-wide regulation, either party can refuse to comply with that provision, challenge it, and seek to have it overturned. If the provision is defective, the remedy would be that the practice established by the prior provision would be reinstated, damaged employees made whole, etc. For example, if the Panel imposed an incentive award program that discriminated against a civil rights protected class of employees, the union could file a grievance, prove discrimination, get the harmed employees back pay, and insist on renegotiating at least the incentive awards article.
Ways to Challenge Panel Actions
If an agency strongly disagrees with a Panel action or order it has several options. It can –
- File a ULP against the union for pushing to impasse an illegal or non-negotiable matter, thereby tainting the negotiating with bad faith activity,
- Declare some core union proposals non-negotiable in the hopes of creating a piecemeal dispute over which the Panel has no jurisdiction, absent mutual agreement,
- Disapprove the final agreement through agency head review,
- Declare the Panel order otherwise illegal and refuse to implement it, forcing the union to file a ULP to resolve the issue,
- Implement the agreement and refuse to enforce the offensive portions of the Panel order, and/or
- Ask the FLRA for a stay.
Similarly, if a union wants to push back it can —
- File a ULP against the agency for bad faith bargaining, thereby raising an obligation to bargain claim that must be resolved through a ULP before FSIP can take jurisdiction,
- Trigger novel negotiability disputes that render the negotiations piecemeal and therefore outside the jurisdiction of the Panel until negotiability is resolved,
- Ask the FLRA for a stay of a Panel order or proceedings,
- Not ratify the agreement of which the Panel order is a part, and/or
- Challenge the legality of an implemented Panel provision through the grievance-arbitration process.
As always, we advise either party intent on pushing back against the Panel to check with its own legal counsel for advice and direction. FEDSMILL.com is not intended as a substitute for legal counsel.