This is the fourth of four parts looking at what is involved in finishing a negotiation. (See the links on the side of this page for the previous articles.) In this part, we’ll discuss using the assistance of the Federal Service Impasses Panel (Panel) or an interest arbitrator to end the game.
As I write this, Federal labor relations both mirrors great events and is part of them. In 2002, President Bush fired the entire fin de siecle Clinton FSIP in a one day massacre. Someone likely got to him with the fact that those appointees were really giving away the store in a hurry. Nobody thought for a nanosecond you couldn’t fire your own appointees then. So what’s the big deal now? Oops! I forgot! Donkeys on the Hill.
Also, Federal labor relations is on the front pages for the first time since the PATCO strike in 1981. It seems that when you put Federal employees anywhere near jet fuel, they want a union and then want to strike. The TSA folks or Gage’s Grip Grabbers (as he’s telling everyone they already are) will likely bring on another Social Security-like slugfest between AFGE and NTEU whether Bush vetoes collective bargaining for them or not. (See "It’s Not Personal; Its Just Business")
The SSA war reportedly cost NTEU a large amount of money (remember AFGE, NTEU get the money directly, then funds (maybe) locals). For my part, I wonder if management had been less likely to buy freedom to operate in exchange for free facilities and services to the unions whether the NTEU dues money engine that fueled the SSA fight would have cranked out enough cash to support it. In any case, whether the TSOs at TSA will likely become represented sooner or later is the question of the day. OK, back to endgames.
Let’s get interest arbitrators out of the way before we discuss the panel. In the 1990s, interest arbitrators were all the rage in Federal labor relations. On the management side, it was widely believed that either the politicals were partnering (read giving away the store) or the Panel (viewed as Clinton’s happy warriors) was. Agency career leadership, if driving the bus, believed the agency was better off going to someone they paid for if the union agreed to go along. The unions, for their part, often believed they might get even more from an arbitrator if the politicals weren’t particularly helpful and the Panel appeared too uptight for their taste.
When you buy a service, you can buy what you want. So remember that if the union suggests an interest arbitrator. You want to use “last best offer or offers?; Med-Arb?; or a coin toss? You came to the right place. You can get a list from FMCS or from the American Arbitration Association. You can tell the referrer that the case is interest is NOT grievance arbitration and that you want someone with Federal interest arbitration experience. Your list won’t be long; there are not that many who have done more than one case.
There is one problem. These folks need to get hired in an agreement between the parties. Baby splitting, a la Solomon, is always a worry or maybe that’s what you’re hoping for. Arbitrators are indeed arbitrary and that’s the risk you run. There’s another issue to keep in mind. If you bypass the Panel and choose an interest arbitrator, you will lose the right to Agency head review. Otherwise, go for it.
Dealing with the Panel
Some things you may not know about the Panel. It is composed of up to seven Presidential appointees who serve at his pleasure (or at least used to before Pelosi & Co.). These political appointees share a single FTE. There’s an Executive Director and currently two professional staffers. That’s a pretty small crew to get out the work and may certainly contribute to the speed in which a case is cleared. So write to whoever you can write to to get the Panel more staff. (Joe, you owe me a beer for this!)
The Federal labor law arguably makes the Panel the most powerful Agency in Federal labor relations. By law, the Panel may take whatever actions it deems appropriate to resolve an impasse and any order consistent with law is final and binding on the parties (unless they agree otherwise, a highly unlikely prospect).
So what’s the difference between the Panel and an interest arbitrator? Simple. The arbitrator must do the parties bidding, the Panel may do as it pleases. So, what pleases the Panel? It depends. The parties can jointly request an approach to resolving an impasse whether med-arb, last best offer, coin toss, etc. but the Panel will decide after it reviews the case, what it believes will work best.
If you want to go to the Panel, there is a form to fill out. Read this form very carefully. You’ll notice the form doesn’t ask what great sacrifices you’ve made to get an agreement thus far. The Panel doesn’t care as we mentioned in an earlier article about mediators, so don’t whine. Put your efforts into convincing them your arguments are better than those of the union.
Mediation/Arbitration – The Old Panel Standby
The Panel loves med-arb. Why? It works. If you are at mediation with FMCS a simple no, repeated monotonously, fires the Commissioner. Not so with the Panel. If a Panel member or staffer has been assigned to your impasse and is engaged in mediation, no is a very bad word. Remember that this person, after all issues are discussed and deals made, is authorized to dispose of what is left as the Panel, in its unique authority, deems appropriate. My advice is that you be very respectful and apparently cooperative in any dealings with this person. I’ve never heard even rumors of the Panel upsetting an arrangement made by one of it’s med/arbiters. Below we’ll talk about arguments to make.
Final, Last Best, and Best and Final Offers
The above are all the same thing and a sometimes used vehicle to end the dispute. The parties prepare their best offer on a piece of language, a section, article or all remaining issues and the Panel picks. For a look at how this works and a spirit lift, if you’re a management representative, take a look at this case involving the Centers for Medicare and Medicaid Services, an HHS Agency. In this case, the Panel gave each party no more than one page upon which to state its case for each article. It’s alleged that the Agency set borders of less than .2 inches all around and used 8 point ariel typeface. If true, I pity the poor Panel folks who had to read the arguments with an electron microscope. Let me know if this story is true.
Ten Critical Arguments to Make Before the Panel
Sometimes the Panel and interest arbiters give us the benefit of their reasoning and the arguments they found convincing. Over the years, I’ve managed to garner the following. Make whatever and as many of these arguments as your case warrants. All of them cut both ways, in your favor and against. So not only must you make yours, but you must counter theirs.
1. Demonstrated Need
a. Proof of Problems
b. Conflicting Rules and Practices
c. Impact of Change
d. Scope and Effect
e. Health or Safety
2. Mission/Work Effect
3. Productivity Effect
4. Workforce Benefit
5. Comparability or Prevailing Practice
a. Same or Similar Agency
b. Similar Environment in Govt.
c. Federal Service
d. Similar Industry Environment
6. Consistency with Law, Regulation
b. Versus Defined Benefit
c. Versus Administrative Ease
d. Versus Productivity Gain
9. Effect on Organization
10. Clarity and Specificity of Language
Some Final Thoughts
Ending bargaining requires a plan. Most would agree that your plan for entering a negotiation and for getting out of it should be developed, at least in draft, before you ever sit down with the union. All of this is serious business no matter how much I may make light of it. I can afford to. I’m not responsible for a negotiation right now. Please do not think that this series is anything but a glimpse at the process. Hard work and hard thinking must go into it. Finally, may the good Lord save you from the involvement of well meaning politicals, ideologues of any stripe, so called experts, and other dilettante. No two negotiations nor endgames are the same, so the best advice that can be offered is that you prepare thoroughly, proceed carefully and gloat privately if you are successful.
I appreciate the comments and emails. Keep them coming.
The opinions expressed in these articles are mine and mine alone. Remember what Voltaire said, “Opinion has caused more trouble on this little earth than plagues or earthquakes.”
For those of you attending LRP’s HR & EEO in the Federal Workplace Conference in New Your City April 16-18, please stop by and say hello. I’m doing two sessions: “Documenting and Making Defensible Discipline Decisions” and “Ready, Set, Bargain: Putting Your Best Case Forward”. I’ll be manning an exhibitors booth.