FSIP THUMBS ITS NOSE AT FLRA
For over two decades FLRA has been issuing decisions outlining how an agency wishing to raise a “covered-by” defense to a union’s demand to bargain must meet the following test: ”If the agreement does not expressly contain the matter, then, under the doctrine’s second prong, the Authority will determine whether the subject is inseparably bound up with, and thus plainly an aspect of, a subject covered by the agreement.” DHS, CBP and AFGE, 69 FLRA 261 (2016). A quick computer search turned up over 100 decisions where FLRA has reaffirmed the “expressly contained in” and “inseparably bound up with” criteria. However, a federal judge looking to leave a personal legacy behind in precedent has refused to accept those criteria. He suggests, against FLRA’s advice, that a matter is “covered by” if it is within the “scope” or “compass” of an existing agreement—two hugely vague words that will generate generations of litigation. We expect that FLRA will continue to stay with the two-part criteria it has established enabling practitioners to benchmark off the facts of its dozens and dozens of covered by decision. But the FSIP just tastelessly stated that it would rather follow the judge’s advice than its parent agency’s precedent.
In NLRB and NLRBU, 17 FSIP 047 (2017) the Panel deliberately avoided mentioning the expressly contain in or inseparably bound up criteria. Rather, it said that a matter is covered by an existing contract if the contract “discusses the general subject,” which is what this judge wants to impose on FLRA. Here is the Panel’s statement:
We will decline jurisdiction over the Union’s proposals. These proposals touch upon work schedules for part-time employees in specific and work schedules in general. Both of these topics are discussed in depth in the attached CBA articles. In other words, they are plausibly covered-by the parties’ CBA and, therefore, not subject to further bargaining. The Union’s argument that the CBA does not address Phased Retirement ignores that it discusses the general subject of these proposals, i.e., work schedules and part-time employment. [Underlining added]
Aside from undermining its own parent agency, the Panel has– we are sure unknowingly given its lack of experience, expertise, CSRA job knowledge, neutrality, forethought, and prudence, —just undermined the NLRB’s (all other agencies’) ability to implement an FSIP final order and agreement risk free. When the Panel issues a decision that is legally defective or outside its jurisdiction either party can refuse to comply and trigger a ULP. If it turns out the Panel imposed an illegal clause or acted outside its jurisdiction the entire agreement could be ruled void from the beginning. That could create a very big status quo ante liability for the agency. Had the Panel applied existing FLRA precedent it would not have created that liability for the agency.
Here’s hoping that this Panel remembers that although the statute gives it broad power via 5 USC 7119(c)(5)(B), namely, to “take whatever action is necessary ”that sentence ends with the limitation that it must not act “inconsistent with this chapter to resolve the impasse.” Each time it does, particularly in midterm bargaining, it creates a huge liability for the agency.