A NEW GROUND RULE CONTROVERSY 

Given the Trump Panel’s vicious attack on unions, it is no surprise that unions are working hard to reduce the Panel’s power.  One way to do that is to block an arguably illegal Panel final order from being implemented soon or ever, if possible. We ran across one last week that is bound to complicate Panel proceedings. The union proposed the following: Given the union’s retention of the right to ratify any final agreement before execution and given the potential that the union could have jurisdictional, legal, and substantive objections to the validity of a Panel decision, the agency accepts that union member ratification will be delayed until any objections to Panel proceedings are concluded so long as the union timely invokes the process or processes for challenging Panel decisions. This in no way lessens any statutory right the union has to delay implementation of an illegal Panel order. 

There are several possible agency responses to this novel ground rule proposal.

First, an agency might agree. After all, if it implements a term agreement based on a flawed FSIP action the agency likely will have to withdraw the new agreement and reinstate the practices of the prior one.  That could mean back pay, attorney fees, the need to redo many personnel actions, etc..

Second, the agency could tell the union that because it claims a statutory right to do this there is no need to also create a contractual right. The union is likely to respond that because the right is not currently adopted in case law, it wants to protect itself and employees by getting a contractual right.

Third, the agency might declare the proposal non-negotiable.  Given that the FLRA has never addressed anything like this proposal the Panel could not take jurisdiction over it under its Carswell authority.  That would reduce any further negotiations over a new term agreement to piecemeal bargaining, which is permissive and an open invitation for the union to refuse to participate further in Panel proceedings.  If the agency pushed to the Panel on a piecemeal package over the union’s objection, it is arguably guilty of bad faith bargaining. If the Panel issued a decision, it would arguably be one outside its jurisdiction and grounds for not ratifying the agreement.

Fourth, the agency might just meekly reject the proposal without denying it is a statutory right or a violation of its management rights.  Its goal would be that the Panel orders the union to withdraw the issue. However, if the Panel does, that would appear to be grounds to reject the agreement in the ratification process and to start bargaining all over again to pursue an alternative protection.

Fifth, the agency could, with the union, ask the Panel to send the parties to binding arbitration before a private neutral under 7119(b)(2). A union would likely welcome being out from under the anti-union hitmen at the Panel.  Even if the union refused to give up its right to ratify the agreement in return for getting before an honest-to-goodness ethical and moral neutral, case law suggests that there is no ratification of a (b)(2) binding arbitration award—nor agency head review.  Any disputes either party had with the arbitrator’s decision would be handled in the arbitration exception process.  If FLRA overturned an arbitrator’s award, the new agreement would be incomplete and not ready for implementation absent mutual agreement. Dep’t of the Interior, AZ and NFFE, Local 1487, 41 FLRA 3 (1991)