THE “GET OUT OF FSIP FREE” CARD
FSIP is the center of the known labor relations universe these days. Agency negotiators are busting vital organs trying to rush negotiation disputes there because they know the fix is in. Unions, on the other hand, are digging their heels in ankle deep to avoid that union woodchipper. So, this is a good time to review the FSIP “piecemeal bargaining” jurisdictional objection. It has been around the fed sector forever, although rarely used. But it just might be the key to changing the balance of power between employees and their managers.
What is piecemeal bargaining? – Piecemeal bargaining occurs where not all the issues one or both parties wish to address in bargaining (and have a legal right to address) are bargained over simultaneously. The most common examples occur when an agency declares a union proposal non-negotiable or covered-by another agreement. The union generally responds by filing an appeal, which removes the disputed proposal(s) from the larger discussion and resolution until that appeal is resolved. In other words, the bargaining is done in pieces.
While that is troublesome for the union during negotiations prior to FMCS involvement, it becomes illegal if the agency insists to the point of impasse that all the other issues can be resolved by FSIP. As the D.C Circuit Court wrote, “As a general matter, with respect to mandatory subjects of bargaining, a party has the right to insist on negotiating an entire contract rather than engaging in piecemeal negotiations over an issue.” (E. I. Du Pont and Co. v. NLRB, 489 F.3d 1310 (DC Cir. 2007) (Opinion written by now Supreme Court Justice Kavanaugh, who jumped right top of the piecemeal bargaining concept pinning it down perfectly.) Consequently, if an agency pushes a half-dozen proposals off the table and then petitions FSIP to resolve the rest it has insisted to impasse on non-mandatory matters. See USDA, FSIS and AFGE, 22 FLRA 586 (1986). Of course, to activate this protection the union must inform the agency and FSIP it refuses to bargain over a piecemeal package. If the union remains silent, the panel’s tradition had been to take the case.
Why can’t FSIP address a piecemeal bargaining dispute? – FSIP is only empowered under law to deal with an impasse. Title 5 USC 7119 (c)(1) states: “The Federal Service Impasses Panel is an entity within the Authority, the function of which is to provide assistance in resolving negotiation impasses between agencies and exclusive representatives.” (Emphasis added) The Panel’s own regulations define an impasse in 5 CFR 2470.2(e) as “…that point in the negotiation of conditions of employment at which the parties are unable to reach agreement, notwithstanding their efforts to do so by direct negotiations and by the use of mediation or other voluntary arrangements for settlement.” In short, if there is no impasse, FSIP cannot take jurisdiction, and when bargaining is being done in a piecemeal fashion there cannot be an impasse.
Justice Kavanaugh is not alone in his opinion that there is no impasse unless ALL legally negotiable proposals have been subject to good faith bargaining and that there is a need to bargain agreements “as a whole” before an impasse can be declared. For example,
“…we think the Board is on sound ground in insisting that the employer bargain until it is plain that the parties are deadlocked in the negotiation as a whole….” Duffy Tool & Stamping v. NLRB, 233 F.3d 995 (7th Cir. 2000).
“Rather, an employer’s obligation under such circumstances encompasses a duty to refrain from implementing such changes at all, absent overall impasse on bargaining for the agreement as a whole.” Visiting Nurse Services, 177 F.3d 52 (1st 1999)
“…unless the employer has bargained to impasse on the agreement as a whole, there is a violation of §§ 8(a)(1) and (5) if the employer makes unilateral changes in mandatory subjects of bargaining (subject to the very limited exceptions described above). See Litton Fin. Printing Div. v. N.L.R.B., 111 S.Ct. 2215 (1991)
There are numerous unpublished Panel decisions rejecting jurisdiction over a bargaining dispute because the parties had not fully discussed to and through FMCS all the proposals. A recent one turned away an agency Panel petition on a ground rule dispute because the union alleged that several of the agency’s proposals were non-negotiable. The Panel wrote, “The U.S. Court of Appeals for the District of Columbia Circuit has held that there can be no impasse over proposals that were never negotiated; therefore, the Panel is obligated to decline to assert jurisdiction in the event that it finds that no impasse exists, consistent with Section 2471.6(a)(1). See POPA v. FLRA, 26 F.3d 1148 (DC Cir.1994).” That court voided a Panel-ordered interest arbitration award.
Although FLRA has not had an occasion to speak as directly and forcefully about piecemeal bargaining, it is hard to imagine it concludes anything different, i.e., every issue in the dispute must be fully discussed in a good faith manner to and through FMCS before FSIP can take a case.
Why have the courts adopted the “no impasse” rule for piecemeal bargaining disputes? – There are numerous reasons, all of which point to the damaging effect insistence on piecemeal discussions has on the statutory obligation to bargain in good faith.
- If the parties are legitimately at an impasse on some core issues, but not on others, it is impossible to know what effect the negotiation of unaddressed core issue ultimately might have had on the negotiation of those at impasse. The final deal on the total package could have been very different than one on discrete packages decided in pieces.
- A negotiation is more likely to be successful when all the issues are under consideration rather than one or more being severed from the discussion. Knowing one or more issues might have to be bargained in isolation might cause a party to demand more now than would otherwise be acceptable. This could include issues of little interest to the party, but that have trade value down the road as nuisances.
- If an agency can unilaterally block discussion of one or more of the union’s most troublesome demands by declaring it non-negotiable or treating it with bad faith, it could shape the package before the FSIP as heavily biased in its favor. That would easily undermine support for the union by creating the impression that the union is impotent, lacking the power to keep issues on the table, or to resist the agency shaping the impasse package to favor itself.
- If an agency can unilaterally severe from the total bargaining discussion a highly troublesome union proposal and delay bargaining it until well after all the agency’s top issues were resolved, it would force the union into single issue bargaining with little or nothing to give the agency in a compromise. It would also enable the agency to partially implement a change before all the issues are resolved.
Can a union create a piecemeal dispute? – Agency negotiators have long benefitted from declaring non-negotiable one or more proposals in a larger term contract package and effectively severing those issues and potential liabilities from the final agreement or Panel order. But unions also have the power to block discussion of less than all agency’s proposals. Agencies would be wise to keep this in mind.
Justice Kavanaugh’s case involved a ULP over an employer’s improper denial of information. Consequently, when a federal agency denies a legitimate union information request it risks putting the negotiations on hold for months or even years because the Panel cannot take jurisdiction. (NFFE v. FLRA, 412 F3d 119 (DC Cir.2005) provides an example of the scope of information that could be requested.)
Unions’ have often proved that agency-crafted award, promotion and appraisal systems discriminate against classes protected by civil rights laws. One need only search FLRA cases citing “Griggs v. Duke Power” to find examples. Consequently, another union option would be to demand that it not only get copies of all appraisals, but also aggregated appraisal data variables broken out by race, gender, age, national origin, etc. Furthermore, unions would be acting within their rights if, after getting an electronic spread with dozens of variables on hundreds of employees, to claim they needs time to analyze the statistics. Bargaining over the related proposals would need to be delayed until the analysis was done. After all, parties need only bargain at “reasonable times” (7114(b)).
A third unions option would be to declare the substance of an agency proposal to be illegal and, therefore, outside its obligation to bargain. For example, perhaps a union alleges that the agency performance award program is not based on the criteria of 5 CFR 300. 103(a). It could make that assertion, demand relevant and necessary information to investigate, litigate the legality issues in a grievance-arbitration forum, and refuse to discuss the issue until litigation concluded. All during that time term bargaining could not move to FSIP for resolution–unless the agency offered the union something in return for its agreement to move the other issues to impasse.
If the agency awards system and proposal did not discriminate, the union’s refusal to bargain would have been illegitimate and blocked nothing. However, FSIP is not empowered to decide that and must defer to an arbitrator or EEOC in the face of a union allegation of such non-negotiability. (See Interpretation, 11 FLRA 626 (1983) See also Dept. of the Air Force, DE and Local 1709, AFGE, 03 FSIP 92 (2003) where there was an arguable obligation to bargain dispute and the Panel wrote “the Panel is constrained to permit the legal matter to be settled in an appropriate forum.” DoD, DLA and AFGE, 18 FSIP 080 (2019))
What if an agency (or union) disagrees with a piecemeal bargaining objection? – For example, if an agency proposed to sever from the negotiations any negotiability or ULP-related disputes so the other term agreement issues could proceed to resolution and implementation, the union would be within its rights to declare that non-negotiable. Although FSIP can address some negotiability disputes under Carswell, it cannot address that one. See Dept. of Commerce, PTO and POPA, 06 FSIP 109 (2007) Should the agency chose to ignore the union, the union likely would refuse to discuss the issue any further and send the agency negotiator an e-mail certifying its refusal to bargain over the topic nor to proceed to FMCS or FSIP on the matter until all issues can be discussed at once. If the agency, nonetheless petitioned FSIP on a package of unresolved issues that included the contested severance proposal, the union could—
- File a bad faith bargaining ULP grievance charge against the agency for insisting to impasse on a non-mandatory subject of bargaining. See USDA, FSIS and AFGE, 22 FLRA 586 (1986).
- Formally object to the Panel taking jurisdiction of any of the dispute given the obligation to bargain dispute.
What if the Panel disagrees with a piecemeal bargaining objection? – If despite union objections to it taking jurisdiction over a piecemeal bargaining dispute the Panel nonetheless schedules a hearing and calls for last best offers, the union could—
- Refuse to participate. But this should only be done with the advice of legal counsel.
- Petition FLRA for a stay of any Panel final order until the obligation to bargain issue was settled. That would keep the parties under the practices established by the prior agreement. FLRA holds that 5 U.S.C. 705 authorizes it to postpone the effective date of an FSIP action, pending judicial review. Blocking implementation of a new term agreement based on a Panel order outside its jurisdiction would save the government the potential cost of having to return to the status quo ante and issue make whole remedies.
- Reject the agreement via a ratification vote and send bargaining back to the beginning. Dept. of Commerce, Census and AFGE, 17 FLRA 667 (1985). The union would also note that the vote failed in part due to the agreement only partially addressing all the issues. Case law holds that unions are entitled to insist that ratification need not be held until they can vote on the agreement as a whole.
- Refuse to sign any agreement to show its disagreement with implementation.
- Inform the official conducting agency head review (AHR) that the Panel Order is legally defective because it addresses less than all the issues. Moreover, given that absent mutual agreement AHR is not authorized if the document before it is only a partial agreement, AHR is not yet ripe. The union would inform the AH it does not agree to waive its right to review of a complete agreement. See Dept. of the Army, NY and NFFE, 34 FLRA 98, 105 (1989) and Dept. of Interior, NPS, VA and NAGE, 20 FLRA 537 (1985).
- If the agency nonetheless moved forward to implement the new agreement, that would trigger a new ULP grievance based on unauthorized unilateral implementation, a demand for a status quo ante order, make whole remedies, back pay, attorney fees, etc. Courts have been willing to void panel orders. See POPA v. FLRA, 26 F.3d 1148 (1994).
What does all this mean for unions? – It means a great deal. To begin, it imposes an immediate penalty on an agency during these days of FSIP anti-union Trumpian bias if the agency declares a union proposal non-negotiable, bargains in bad faith, or proposes the union waive a statutory right.
Second, it enables the union to challenge the legality of a Panel decision where FSIP chooses to ignore its jurisdictional limitations with potentially huge penalties on the agency if status quo ante, make whole remedies, back pay and interest are imposed.
Third, unions can block AHR and implementation on the grounds that the Panel Order and agreement only partially address all the issues.
Finally, it means that unions now must formally assert that they will not further bargain over or address any proposals impacted by a bad faith ULP or improper negotiability dispute. They will likely resist doing so to and through FMCS so that the agency cannot argue the union waived its right to bargain the agreement as a whole entity. Of course, if the union’s allegation is not upheld FSIP jurisdiction would be proper, but FSIP cannot decide the merits of those claims. It must wait for others to decide them. Furthermore, the more significant the bargaining proposal to the total contract the better the union’s claim.
What does all this mean for agencies? – We hope that agencies take away from this analysis the vital lesson that if they do anything to break term or midterm bargaining into pieces they risk giving away access to the Trump Panel.
Of course, agencies can ignore the potential for a successful piecemeal bargaining objection. After all, FLRA has not yet solidly faced such as case. But if FLRA decided to follow the private sector law, any agreement the agency implemented that was tainted by piecemeal bargaining and therefore issued under improper FSIP jurisdiction would likely be voided and the agency obligated not only to return to the status quo ante, but also make damaged employees whole.
Another option is to avoid declaring union proposals non-negotiable. Agencies should even avoid basing an objection to a union proposal on a reference to management rights lest the union file a negotiability petition without a formal agency declaration which is its right. Given that a union can raise a jurisdiction objection at any time, even an agency reference to a management right argument at FSIP for the first time could shut down the hearing.
The agency should avoid denying information requests unless on very solid grounds because an error hands the union a “Get Out of FSIP Free Card.” The same goes for engaging in any other violation of the good faith bargaining obligation.
Finally, agencies should steer clear of making a proposal that might infringe on the union’s rights.
What does all this mean for FSIP? – Given that the Panel chooses to be a union bashing arm of a certain cousin-marrying political cult rather than professional neutrals, it should not be surprised if unions very aggressively move to avoid cases going before it. Moreover, it should realize that each time it ignores its jurisdictional limits, it hands the union an opportunity —
- to veto the Panel order in ratification and send bargaining back a few steps, and/or
- to challenge the agency’s effort to implement the partial agreement and void the Panel order with all the consequences running from a status quo ante orders to union attorney fees awards, and/or
- to challenge any agency effort to exercise AHR over the agreement.
All of this will greatly complicate term and midterm bargaining for agencies as well as raise their liabilities to unprecedented heights. It need not have happened if the Panel were a true neutral venue and the Trump Executive Orders were not imposed in such a harsh form.