FSIP BACKS OFF
The Panel does not publicize its decisions over whether or not to take jurisdiction, but they are very important to the LR community nonetheless. In the case of Patent and Trademark Office and POPA, 20 FSIP 045 (June 2020) we see yet another instance of the union outmaneuvering the agency so as to block FSIP from putting one more collective bargaining agreement through its mean-spirited, anti-union meat-grinder. Knowing how to block the Panel from taking jurisdiction may be the most important skill a union negotiator can have these days as the Administration looks to crush unions. (Similarly, knowing how to avoid jurisdiction pitfalls is just as critical a skill for agency negotiators, as the PTO management team proved so convincingly in this case.) Fedsmill.com has posted many pieces on what blocks FSIP from taking a case that go into issues not involved in this PTO-POPA case. Among them are the following:
- TRUMP’S EXECUTIVE ORDERS HOG TIE AGENCY GROUND RULE NEGOTIATORS
- VITALLY IMPORTANT THINGS TO KNOW ABOUT FSIP’S POWERS
- THE “GET OUT OF FSIP FREE” CARD
Just type in FSIP to the Fedsmill.com search box if you want to see them all. Here is how the union blocked the Patent and Trademark Office management from getting FSIP’s union-hating help.
First, the agency made a new proposal after the parties had concluded FMCS. Unions should not expect other agencies to make that blunder again. It violates the obligation to discuss an issue in mediation before taking it to the Panel.
Second, the agency proposed to sever from the main bargaining any proposals declared non-negotiable. It wanted the union to agree to bargain them separate from all the other issues after the other issues were resolved. This is another mistake given that the Panel has said repeatedly it cannot address proposals that the union has declared outside its obligation to bargain and which the FLRA has not yet addressed. A demand to sever is a demand that the union waive its right to negotiate a complete agreement all at once. Neither party is obligated to bargain an agreement in pieces, and therefore, even this FLRA will find it is not a mandatory subject of bargaining for either party.
The thing that makes an agency severability demand extremely difficult to deal with is that it is the union declares it non-negotiable. Given that the statutory negotiability process is set up only to handle agency declarations of non-negotiability the agency has no choice but to file a ULP against the union. In all likelihood, that means it will take years for the issue to be resolved as it works its way through arbitration of an ALJ hearing, FLRA review and then judicial appeals. The agency cannot avoid the issue by simply not proposing severability because if it declares one syllable non-negotiable in the union proposal the entire agreement gets held up until that negotiability dispute is resolved. Its best course of action is to give the union something in return for its voluntary agreement to sever non-negotiability disputes, but Trump executive orders pretty much block the agency from giving the union anything of equal value.
The third agency blunder by PTO was proposing rules for how the union would conduct any ratification of the agreement. Agencies have no right to bargain how the union conducts ratification.
The fourth PTO screw-up was to propose that the union could only vote to ratify the agreements not imposed by FSIP. If FSIP imposed a provisions, PTO wanted the union to waive its right to ratify those. The law pretty clearly provides that the union has a right to insist that its ratification vote be based on the contract as a whole, no matter how much of it the Panel imposed.
The fifth agency mistake was to propose language limiting the scope of any subsequent negotiations to reopen the agreement or to address issues found negotiable pursuant to an FLRA decision. That is a waiver of the union’s statutory rights and therefore not a mandatory subject of bargaining.
Although the Panel reached the right decision to refuse jurisdiction and thereby force the agency to begin bargaining again, it did so for the wrong reason. It stated that because 80% of the proposals in dispute involved legitimate jurisdictional questions that there was “good cause” for the Panel to decline to get involved at this point. It tossed in some gibberish about how doing so “would not be an effective use of resources,” which demonstrates yet again that the Panel is in denial about its powers. Its jurisdiction does not depend on the percentage of issues tainted by jurisdictional objections; as we see it even one dispute blocks the Panel from going forward because to do so would be to force piecemeal bargaining on the parties.
The law says that a union does not have to engage in piecemeal bargaining, as we explained in THE “GET OUT OF FSIP FREE” CARD. Whether the single issue involves something monumental such as whether the union will get official time at all or a tiny issue like how the union will conduct ratification, the impact is the same. The agency is insisting on a non-mandatory subject of bargaining to the point of impasse. The Authority has repeatedly held that to be a ULP.
In addition, the Authority has ruled that agency head review is not ripe if even one issue in the entire contract is unresolved and either party declines to implement a partial agreement. If the agency head is blocked by case law from ruling on the legal merits of a contract because of a single disputed word, why does the Panel think it has the power to rule on the terms of that agreement.
Finally, this Panel’s own concern for a “good use of its resources” works against it having the right to take jurisdiction if there is even a single disputed jurisdictional issue. Assume that the lone issue involved in litigation is a key provision of the Performance Appraisal article. If it is held to be negotiable after the Panel resolves all the other disputes, it could create havoc. For example, performance appraisals generally play a major role in the promotion, reassignment, award and RIF articles. If the Panel has already settled those other articles, it could create a mess for the parties, especially an agency, if the Panel subsequently imposed a Performance Appraisal provision that did not mess with the other articles easily. This could easily happen if the Panel membership changes between the decision on the partial agreement and the one on the single Performance Appraisal issue.
As we have often said, don’t take our word for it. Contact your union counsel to get the house blessing if there is any doubt at all.