WHEN TO TELL THE FSIP TO TAKE A LEAP – Revised
Mark Carter has been a faithful lapdog of the rightwing community that seeks to bankrupt and otherwise crush unions. He has maintained the practice of finding against unions 90% of the time which began during the Bush W. Administration. (By way of comparison, during the Clinton and Obama Administration FSIP only found against agencies about 50% of the time.) Mark has shown there is no level too low to which he is willing to bend to screw over a union, thinking there is nothing unions can do about it. But there are several reasons why employees, screwed over by the Panel just because they are union supporters, can tell Mark and his extremist posse to “bugger off,” “pound sand,” “take a leap,” etc.
Not long ago an arbitrator voided a Panel decision because the agency committed numerous bad faith bargaining infractions leading up to the Panel decision. Mark, in his eagerness to screw over another union and please his patrons at one or more right-wing, anti-employee organization, chose to ignore the violations of law and took jurisdiction thinking a Panel decision would erase any claim of damages from the ULPs. But he was wrong. Kiko and Abbott will probably strain themselves to the point of galloping piles looking for reasons to overturn this decision, but it is appealable to court. That would be the same court that recently called those two “arbitrary and capricious” for denying even the tenets of sophomore geometry.
The decision got us thinking that it might help to list some of the reasons why a union can ask an arbitrator to similarly invalidate a Panel order.
- Assume the union makes an information demand to help it support a bargaining position only to have it improperly denied by the agency. That is a ULP and the Panel should not be allowed to take jurisdiction over a dispute where a bargaining-related ULP is lingering. It has admitted that several times since NWS, 87 FSIP 9 (1987) (See also DOJ, 00 FSIP 102. That only makes sense because the party alleging a ULP is entitled by law to a due process resolution procedure before a Senate-confirmed body. FSIP is neither of those things. Moreover, if the Panel admits it cannot take jurisdiction over as matter that the parties have not adequately addressed in negotiations (SSA, 07 FSIP 38), does it matter if the inadequate discussion was due to a ULP? The Panel has at times ignored the reasoning in the cited cases, which raises the possibility for a union to challenge any FSIP final order as defective. An arbitrator would be within his powers to void the Panel decision, return the parties to the status quo ante of the prior agreement, and order bargaining to resume.
- If the Panel tries to insulate itself from a pending ULP charge by deciding only those issues not impacted by the ULP, e.g., maybe 25 out of 30 articles opened, its decision is interlocutory, not final. Numerous FLRA decisions hold that the agency head (AH)has the right to review Panel decisions (NFFE, 17 FLRA 84 (1985)) and almost as many hold that the AH’s decision must be based on a review of the entire agreement, not portions of it (NAGE, 20 FLRA 537 (1985)). Consequently, is not a Panel decision addressing only a portion of an agreement is not ripe for AH approval nor implementation? A similar argument can be made where the agency has declared union proposals non-negotiable. Although many parties have agreed to sever negotiability disputes from the rest of the term agreement articles so the latter can move forward quickly to agreement and implementation, FLRA has yet to rule on whether that is required or even a mandatory subject of ground rules bargaining POPA, 06 FSIP 109 (2007)). Unions should test that now that Carter and Company have made it clear they will almost always lose no matter what the evidence or circumstances.
- Assume an agency rushes the union through bargaining refusing to adequately discuss differences. Maybe it limits term negotiations to only a week or two of meetings despite 30 open articles, or it petitions the Panel without having had any discussions on several articles, or declares impasse after the first union counter-proposal refusing to accept the agency proposal. Law requires that parties approach negotiations with a “sincere resolve” to settle differences, and prohibits agency actions suggesting that bargaining is futile. Each of the examples above would strike most arbitrators as violating those legal requirements and provide ground for ordering the agency to restart bargaining.
- An agency proposes changes that strike at the heart of viable unionism, e.g., such as portions of the Trump executive orders require them to make. That is a major indication of bad faith bargaining before bargaining has even started. Add to that some of the other indicia of bad faith bargaining, e.g., ending a bargaining day after ten minutes of discussion, refusing to explain its proposal or answer questions, refusing to discuss a disputed article unless the union puts a counter-proposal on the table, refusing to provide reasonable and necessary evidence on the bargaining table relevant to the disputed issue, and you have the makings of a solid bad faith bargaining violation based on the totality of events. Unions should make a list of everyone of the indicia of bad faith bargaining and record each time an agency engages in one during bargaining so that they can build “totality of bargaining circumstances” cases.
The value of filing and winning these cases is that more arbitrators can order the agencies to reinstate any provisions and practices of the prior agreement, compensate employees for any back pay entitlements—plus interest and benefits such as TSP contributions, and add attorney fees for the union staff. On top of that, the arbitrators may order the agency to restart bargaining at the point where it began to engage in illegal behavior and even reimburse the union for any costs its suffered, e.g., travel and per diem, to engage in futile bargaining. That effectively voids a Panel decision under the “fruit of the poison tree” principle known to every lawyer and judge on the planet. While Carter’s disregard for the law will likely result in some short-term damage, it can bring spectacular victories that in the end further undermine employee faith in agency managers who are “merely following orders.”