SSA & AFGE: PITY THE POOR PANEL ZEALOTS
Zealots can be at their most dangerous when they actually know something about law and regulation. When they don’t, they just look foolish and wind up hurting the people they want to reward. For example, in late May the FSIP issued a decision in a term contract dispute between SSA and AFGE. The first issue it addressed was the agency’s demand to “terminate all 1, 046 (approximate) existing memorandums of understanding (MOUs) and other supplemental agreements.” With what we can only imagine was ideological drool running down their faces, the seven Panel members leapt to adopt the agency’s demand saying that terminating those documents will create “one guide for all interested parties.” That guide is the new collective bargaining agreement. But had they taken the time to know the law that they help administer, here is what they would have run into.
First, while MOUs and supplemental agreements often do terminate as formal agreements at the time the master or term agreement terminates, the terms and conditions of employment they established remain in effect as enforceable past practices. The agency cannot stop living by those established terms and conditions until it serves specific notice on the union of the changes it wants to make. That is rock-solid case law.
Second, this “specific notice” requirement is not some empty slogan like Make Agreements Great Again.( MAGA) In order for an agency to terminate the conditions of employment an MOU established it must notify the union of the NATURE of the proposed replacement practice, the SCOPE of its coverage, the expected TIMING of the change to existing practice, and what it anticipate employee will LOSE with the change. At that point, the union has the right to demand negotiations over he proposed change.
Third, the Panel may think that the union does not have the right to negotiate over the changes, but that also would be wrong. Taking a union’s right to bargain away is considered a waiver of statutory rights and FSIP does not have the power to do that against the union’s will. Moreover, the right to bargain does not arise until specific notice has been served on the union. Since that has not happened yet and Panel jurisdiction ended with the signing of the SSA and AFGE decision, there is no waiver.
We are really surprised at Member Carter for making these mistakes. Back in West Virginia, he charges management clients a lot of money for his labor law expertise when he is not helping the President to punish unions. The three legal concepts discussed above are widely known among labor lawyers. Failing to apply them here strongly suggests that something other than allegiance to the law is driving his thinking.
In any case, the Panel zealots have written a decision that has imposed language of highly dubious legality. If it is illegal, then the agreement cannot be implemented and the union is entitled to return to bargaining to start all over again if it wishes.
If there is a fight over whether a defective Panel order can be legally enforced, here is how it might go. First, the union will inform the agency it thinks the Panel order is legally defective and refuse to sign the agreement. (It may even hold a ratification vote to vote it down as extra insurance.) Second, the agency will tell the union it disagrees and send the document forward for agency head approval and implementation. Third, the union will probably inform the agency head that under law s/he must approve agreements as a whole. They cannot cherry pick provisions, declare them illegal, and implement what is left. If the Panel imposed- provision is illegal, you could say the agency head does not even have the power to approve the agreement. Fourth, the agency head will probably sign the agreement and implement it. Fifth, the union will file a grievance alleging implementation of the agreement violates law, ask for any changes made to be undone and all damages remedied, including through the use of back pay, attorney fees, and some non-traditional remedies. Sixth, as a ULP grievance the matter can be appealed to the court. Kiko and Abbott will not be able to act with immunity. Seventh, if the union wins, which could occur early if political control of the White House changes soon, SSA could be saddled with implementing the biggest remedy in the history of the federal sector.