FLRA WEAPONIZES FSIP AGAINST UNIONS IN FEA CASE

There are at least three ways a union can be treated illegally at the FSIP.  First, the agency can engage in bad faith bargaining that poisons the entire proceedings. Second, the Panel can exceed its jurisdiction.  Third, the Panel can impose contract terms that violate the law. Agencies have effective ways to challenge each of them, but FLRA recently highlighted with the following words that it will let unions challenge only the first situation: “Only a party that fails or refuses to comply with a Panel order, and is consequently charged with a ULP, may then challenge the Panel’s order.” DoD, and FEA, Stateside, 72 FLRA 601 (2021)) Requiring the agency to file a ULP before a union can challenge the legality of a Panel order screams of an arbitrary and capricious action, as explained below. Just as importantly, it puts the Panel in a position to illegally savage a union and the statute without any threat of reversal.

In the first of the three situations, if either party engages in bad faith, e.g., by insisting to impasse on a permissive or illegal demand, the other party can file a ULP. If we are reading the case law correctly, the FLRA bars FSIP from continuing jurisdiction as soon as a ULP charge is filed. If FSIP were to ignore a ULP allegation or resolve it without the permission of the filing party, that would amount to permitting FSIP to take away a party’s statutory right to file and benefit from the due process protections therein, e.g., a hearing before an ALJ with judicial review. (See Interpretation and Guidance, 11 FLRA 626 (1983). The Panel has not always adhered to that requirement. See 03 FSIP 092 (2003), 07 FSIP 10 (2008) and 08 FSIP 795 (2008) for cases where it did.)

If the Panel does go forward to issue a decision despite a ULP charge and the agency implements it, case law seems to endorse a remedy of voiding the FSIP-imposed agreement and forcing the agency to return to the status quo ante of the prior agreement while bargaining begins anew.  That is consistent with the idea that the Panel does not have jurisdiction to decide disputes piecemeal or partially. (see The “Get Out of FSIP Free” Card for details.)

Where the Panel exceeds its jurisdiction, the second situation, neither party has a direct appeal route like a bad faith ULP charge. However, if the agency suffers the harm, it can refuse to implement the Panel dictated agreement, forcing the union to file a ULP.  That effectively gives the agency the right to raise its jurisdictional objections in its defense against the ULP and overturn the FSIP decision according to 72 FLRA 606.

But, when the union gets damaged by the Panel exceeding its jurisdiction, it has no way to block an agency’s unilateral implementation of the agreement and thereby force an agency to file a ULP giving the union a forum to raise its objections to FLRA and the courts.  If a union refuses to sign or implement an agreement, NO AGENCY IN ITS RIGHT MIND SHOULD EVER FILE A ULP given that 72 FLRA 606 effectively gives them immunity from challenge. For example, assume the Panel imposed a last-minute, anti-employee provision addressing a matter that the parties never bargained over. Perhaps it barred employees may not contact a union representative during the workday. The D.C. Circuit has ruled the Panel may not address a proposal over which the parties have not negotiated. (POPA v. FLRA, 26 F.3d 1149 (1994)) In short, by implementing, irrespective of any union protest or refusal to sign, and foregoing a charge against a union’s proclaimed refusal to implement the agreement, the agency denies the union an opportunity to object to the Panel’s actions according to 72 FLRA 606.

Recognizing that the agency always will have an effective route for challenging a Panel jurisdictional error, while imposing a rule that effectively denies only the union the right to use the same forum to challenge a jurisdictional matter, screams arbitrary and capricious to us.  Certainly, the Authority has not explained—

• why this is one-sided advantage is necessary for the collective bargaining process, or
• how it would not lead to FSIP abuse of unions, or
• how it squares with its decision in NLRB and NLRBU, 72 FLRA No. 66 (2021) where the Authority allowed a union-filed ULP challenging the Panel’s jurisdiction based on bad faith bargaining, or
• how it fits with the statute’s dictates that parties have mutual rights in bargaining (5 USC 7103(a)(12)) or that the only agreement either party is entitled to enforce (or required to comply with) is one that conforms to the provisions of the statute or any other law or regulation (5 USC 7114(c)), or that a Panel order is only legally enforceable if it is consistent with the statute (5 USC 7119(c)(5)(B)). (Check out “Vitally Important Things To Know About FSIP’s Powers for a detailed discussion of potential Panel jurisdiction infractions.)
• why it allows either party to file exceptions (for many more reasons than addressed here) to an impasse decision when rendered by a private neutral standing in for FSIP, but it is vital to restrict the union’s ability to challenge when a Panel impasse decision violates law?

The third situation works out even worse for the union. To set the context, let’s assume the Panel imposed a blatantly illegal, anti-union provision, e.g., the union may not receive official time for hours spent in negotiations with the agency. That is an unquestionable violation of 5 USC 7131(d). If the Panel imposes a provision the agency believes violates law, the agency has the statutory right and process in which to refuse to implement the agreement, i.e., the agency head review process (AHR) (5 USC 7114(c)). The statute does not offer a union a similar right or process. That might not damage the mutuality or other principles underlying the statute if the union could file a ULP alleging that implementation of an agreement despite an agency-overlooked illegal provision the agency violated 7114(c)(2). That appears to be actionable via 7116(a)(1 and 8) charges, except for this FLRA decision requiring a pre-existing agency-filed ULP if a union’s intent is to challenge the Panel order. Once again, we feel comfortable charging the Authority with an arbitrary and capricious decision in 72 FLRA 601.  It does not explain why the union should need the agency’s permission, via an agency-filed ULP, to raise its challenges to an allegedly illegal FSIP decision. Enforcing compliance with the statute is in the public’s interest no matter which party leads the charge.

Agencies also have the option of responding to a Panel-imposed agreement containing one or more illegal provisions, by letting it go into effect and promptly declaring the offending provisions illegal. Nothing in case law seems to stop the agency from doing this. Doing so gives management the immediate benefits of all the other provisions of the Panel-imposed agreement, while potentially extracting one or more offensive provisions.  (We at FEDSMILL disagree with the idea that should an agreement be implemented with an illegal provision the remainder of the agreement continues in effect. That not only positions the agency to abusively cherry-pick objections, but it also seems to fly in the face of the case law holding that, absent mutual agreement, AHR is only ripe for review of entire agreements. Dept. of Interior, NPS, VA and NAGE, 20 FLRA 537 (1985) Unions have a similar right to withhold a ratification vote until the complete and final agreement is before the members. If an agreement provision is declared illegal after it is implemented, was it a whole agreement when submitted for AHR?)

This new FLRA decision also seems to have taken away a union’s right to initiate a claim of non-enforceability, i.e.,

The Union’s failure to follow the “specific review procedure[] established by the [S]tatute” for challenging the Panel’s order precluded the Arbitrator from ruling on whether Article 18, Section 3(f) was unenforceable as a “permissive subject of bargaining” or because it was “covered by Article 11.”33

If you are asking yourself what those procedures would be other than begging the agency to file a ULP so the union can voice its protest, so are we.  This FLRA conclusion reminds us of a similar situation where the agency refused to implement an impasse decision. FLRA rejected the agency’s appeal, referring it to what the D.C. Circuit ultimately labelled “…some unidentified other appropriate proceeding to appeal.”  In reversing the FLRA, the court not only wrote the FLRA decision, “…illuminates the irrationality of the Authority’s approach.” but also that “The Authority’s purported resolution of this case is not only inane, it is patently unfair.” POPA v FLRA, 26 F.3d 1149 (1994) Hopefully, a court reaches the same conclusion should this case be appealed. Perhaps it also will raise the inconsistency of the Authority allowing a union to file a patent breach ULP when an agency does not comply with a legal provision of the agreement, but denying it the right to file a ULP when it seeks to stop compliance with an illegal provision.

No one should conclude that we are overlooking the holding in Council of Prison Locals v Brewer, 735 F.2d 1497 (D.C. Cir. 1984) permitting a union to challenge a Panel decision directly to court if it is arbitrary and capricious. We note that for a court to have jurisdiction “…there must be a ‘specific provision of the Act which, although it is `clear and mandatory…,’” was nevertheless violated by the Panel. The court ruled that should occur only in “extraordinary situations.” Objections over Panel jurisdiction or the negotiability of provisions are most unlikely to ever meet that test.

Most of the problem of denying unions an equal right to challenge and reverse Panel decisions can be solved by reversing this new FLRA decision and any precedents it relied upon. Review should strike the requirement that the agency must file a ULP before a union can raise allegations of statutory violations and recognize a union can challenge a Panel-imposed provision as non-enforceable even after an agreement is implemented.  Moreover, reversing this would give the FLRA an opportunity to review the union’s allegation of an illegal Panel action before the union runs off to one of dozens of District Courts looking for assistance.  Finally, reversal is necessary to stop future Panels from savaging unions with imposition of illegal contract provisions and/or denial of their due process.