NOT SO FAST PANEL PUPPETS

AFGE’s very creative General Counsel’s office scored a major litigation victory recently in a case where it argued that FSIP must have at least 7 members on the Panel before it can render a decision.  That requirement of law has been on the books for decades, but overlooked by everyone until AFGE staff asked the proverbial “What if?” question. Spooked by the lawsuit, the White House did not wait for a court to club it into submission.  It moved swiftly to make sure the Panel always had at least seven members, and it had its finger puppets at the Panel issue a decision “ratifying all the decisions it issued during a twenty-six month period when it did not have seven members.  To that we say, “Nice try, but no cigar” for the following reasons:

1-     The decisions issued during the twenty-six month period when FSIP dd not have the power to act are not before the Panel.  FSIP cannot just issue a sweeping proclamation announcing that it was once again retaking jurisdiction over those parties.  The Panel had closed the book on those cases and now must await a new petition from one or both parties asking it to retake jurisdiction before it can rubber stamp improperly issued decisions.  It seems as if the President’s inclination to think of himself as a king, has spread to his Panel puppets.  There are procedures to be followed. For example, if a government-wide regulation has been issued since September 2017 that conflicts with a provision in one of those contracts the agency is barred from complying with that regulation until the contract reopens. Under the Panel’s twisted approach, that may be years from now.  However, if the Panel follows the actual regulatory path, the agency can implement that regulation now.

2-     The White House and Panel essentially have admitted that the prior Panel decisions were defective.  If they were, then the terms and conditions established by the prior term agreements have remained in effect and continue in effect until the Panel issues a proper decision in the future. If the prior Panel decision had taken away some benefit, employees could be entitled to back pay, interest and attorney fees. Unions could be owed official time hours.

3-     The Panel’s announcement said it was “ratifying” those decisions. Nothing in our copy of the statute gives it the power to “ratify” anything.  It may issue final orders, but that is it. And even final order can only be issued in cases over which it has jurisdiction.

4-     We have to assume that the law required seven members on the Panel for a legitimate reason, e.g., the law intended that labor disputes be examined from seven different perspectives. The Panel issued its “ratification” decision almost simultaneously with coming into compliance with the seven-member requirement. There is no way that the seventh member reexamined 26 months of prior decisions and upheld each. Ratification is a sham intended to mock and avoid the seven-member requirement.

As we look down the road, we see years of litigation over these improperly-rendered Panel decisions—or in the alternative the individual parties sitting down and reaching a deal that puts a new contract into effect.  We prefer, and hope for, the latter.  For example, a new Panel collective bargaining decision may limit a union’s official time to one hour per unit employee. But, nothing bars the parties entering a grievance settlement that restores a lost benefit such as the right to use official time hours improperly terminated by the seven-minus-one puppets.