TRUMP’S EXECUTIVE ORDERS HOG TIE AGENCY GROUND RULE NEGOTIATORS
Traditionally, there are four things agencies want from unions when bargaining ground rules for reopening a term agreement. This is particularly true during times when the FSIP is heavily biased against unions, e.g., 2001-08, 2017 to the present, etc. But, the President’s anti-union executive orders have made it almost impossible to get those concessions from unions now. Chalk that up to a big dose of irony or just plain old lack of forethought, but the result is the same. Agency negotiators are hog tied by their own President if unions want to use the power Trump unwittingly gave them.
At the top of an agency’s ground rule goals is an agreement from the union to sever from negotiations disputed issues involved with negotiability challenges and alleged bad faith bargaining ULPs. That enables an agency to block discussions of issues they do not want to deal while be able to implement the agreement or FSIP decision on all the other of the issues.
Second, agencies want the union to agree to drop or significantly limit its right to ratify the agreement. Again, that would avoid having to start bargaining all over again or delay implementation of the very pro-management agreement the current FSIP is famous for.
Third, agencies want unions to agree to limit any renegotiation of the agreement should the agency head disapprove even a tiny bit of the tentative agreement. Given that they have the statutory right to start bargaining all over again if the agency head disapproves a single syllable, the potential for delaying the management -favorable changers is huge when the union refuses to limit itself.
Fourth, agencies want unions to agree to a condensed and quick schedule of bargaining so the agency can put the dispute before the anti-union FSIP members. This is particularly critical to them given the pending Presidential election.
Unions have a statutory to refuse to negotiate over each of those things. At least, that is how we read the case law; we have no idea how Abbott and Kiko, the White House’s anti-union operatives, will read the law. Consequently, in the past agencies had to offer unions something to make concessions on those four issues. Typically, the agency would offer the following:
- Travel and per diem for the union’s bargaining team,
- Extra official time for the union to prepare proposals, and
- Full payment for the cost of renting space in which to negotiate.
There were other possible ways to sweeten the deal for the union, but those were the absolutely critical elements of the deal. However, now that Trump has made it illegal (or extremely dangerous for a manager’s career) to offer those concessions, agencies have nothing, nada, zilch, nil and zippo to offer that would even tweak a union’s interest in making concessions in those areas.
Agency negotiators are learning only too quickly how the unions are responding, i.e., they are
- Refusing to sever any negotiability or ULP issues from the other issues being bargained thereby creating a near certainty that the dispute cannot go to the FSIP for resolution until those issues are fully litigated;
- Refusing to expedite the ratification schedule;
- Refusing to limit their right to demand to renegotiate the term contract from scratch if the members fail to ratify what comes out of negotiations and any FSIP order;
- Refusing to allow an agreement to go forward for agency head review unless all original proposals had been fully negotiated or addressed;
- Refusing to agree to a pre-set limit on the time they will spend in negotiations before FMCS or the Panel can get involved;
- Refusing to agree to the simultaneous exchange of proposals when it is the agency that demanded to reopen the term agreement;
- Refusing to ignore the fact that with the Trump executive orders hanging over their heads the agencies are bargaining in bad faith without the latitude the statute gives them to discuss all negotiable issues, thereby handing the union a near-perfect bad faith bargaining ULP case;
- Refusing to ignore when agencies petition FSIP to take jurisdiction over a ground rule dispute where the agency is still proposing permissive subjects of bargaining, which each of the four agency goals appears to be, thereby handing the union a near-perfect bad faith bargaining ULP case; and
- Refusing to sign and implement any agreement imposed on them by the Panel despite legitimate disputes over the issues above, thereby creating the potential that litigation will result in an order that any agency imposed revision to the term agreement be voided, prior working conditions returned to the status quo ante, and damage done the union or employees be properly compensated.
In short, since Trump has decided to try to use the law to bias bargaining in the favor of agencies, unions have decided to do the same by implementing a litigation-heavy bargaining strategy to counter the White House interference. If agencies try to bull their way through or the Panel ignores the limits of its jurisdiction, agencies can expect to see arbitration awards containing words very similar to those from Arbitrator Creo when he faced just such a situation in 2019.
The Arbitrator accepts the Union assertion that it is well-established that arbitrators are empowered to order the same remedies as the FLRA in arbitrating a grievance alleging the commission of an unfair labor practice….§ 7105(g)(3) states that the Authority may require an agency to take any remedial action it considers appropriate to implement the intent and provisions the Statute. Moreover,… if the Authority determines that an agency [committed] an unfair labor practice, then the Authority has the power to issue a remedial order requiring the parties to return to the collective bargaining table to renegotiate; the agreement, as now amended, can be given retroactive effect….The Panel’s November 15, 2018 Decision to take jurisdiction over some of the articles the parties were negotiating at the term table does not have any effect on the broad arbitral discretion to issue an appropriate “make whole” remedy for a violation of the Statute. Likewise, any subsequent Decision of the Panel, or any future behavior at the bargaining table, regardless of FMCS assistance, does not erase or cure the initial bad faith bargaining by the Agency which caused the involvement of FSIP…. A status quo ante remedy is necessary to ensure compliance with the Statute and deter future violations by the Agency. The Arbitrator agrees with the Union that there must be meaningful consequences resulting from the illegal actions of the Agency. The remedy should be fashioned to make the aggrieved party whole and to deter future misconduct. The Arbitrator finds that a status quo ante remedy is appropriate to address the Agency’s failure to bargain in good faith.
Sadly, addressing and updating agency personnel practices and employee working conditions are mere afterthoughts for negotiators under Trump’s orders and remain so until the legal dust settles years from now.