Pity the Panel; Move on to Med-Arb
Monday, March 30, 2009
You do not have to be an admirer of television's legendary "Mr. T." and his signature line, "I pity the fool!" to pity the Federal Service Impasses Panel (FSIP or the Panel). It is hopelessly out of date, out of touch, and out of ideas. It is Woolworth in the age of Wal-marts, the Princess rotary phone in the time of the I-Phone, and the portable typewriter in the era of the Blackberry.
Anyone actually responsible for what happens at a collective bargaining table knows that the 800 pound gorilla in the bargaining room is time. The party that wants to make a change has to endure not only the slow statutory process, but also any delaying tactics by the party opposed to the change. Consequently, time punishes the union looking for a new term contract and management looking to quickly make a midterm change.
Sadly, there is little the Panel can do to help either party avoid time's damage. The Panel can do nothing about how long the parties spend at a bargaining table before seeking FMCS assistance, it can do nothing about how long or efficient the parties are at mediation, and even when one party does file a petition asking for Panel assistance, the Panel's "do nothing" role merely shifts to a "do little" one.
It is likely to be weeks before a Panel staff member contacts the parties to "investigate" whether the parties are really "Panel-worthy." The investigation usually takes a few more weeks, and then sits on someone's desk when completed waiting for the Panel to schedule one of its periodic meetings to review it. These seem to happen monthly at best. Once the Panel meets and decides to take the case, it then usually has to schedule a time for its designee to meet with the parties in a hearing-like atmosphere, receive post-hearing briefs, draft a recommended resolution, and once again wait for another periodic Panel meeting to make a final decision. It is not unusual to wait more than six months for the Panel to "assist" the parties--and I use that word "assist" loosely, as in assisted suicide.
But, even if the Panel suddenly found its warp speed switch, it still has lots of other debilitating features. First among them is its jurisdiction, which reminds me of every comedy show's "Day at the DMV" skit. Imagine the potential driver that enters the DMV for the first time with the only goal of being able to drive his new car. He waits endlessly on line to get to the window only to be told that while his car is now registered, he must go to another window to get his license. Once the license is in hand and another wait behind him, he is directed to another window to get his insurance certified, and once that is done he is sent to another window to get his inspection sticker, and from there to pay any tax owed on the car at a final window. When he finally leaves he not only is legally compliant, but also "road rage" ready.
Most bargaining disputes face similar treatment at the hands of the Panel, especially when one party seeks to delay the other. If the dispute over the core issue has any related procedural problems, the Panel does not have the ability to deal with them all at "one window." For example, when a party insists that it is not obligated to bargain over the issue—perhaps because it is covered-by or outside the scope, the Panel cannot formally address that issue but must send the parties elsewhere to get that issue resolved. Should there be a negotiability objection the Panel can deal with some of them, not all of them. Those that the Panel cannot deal with get sent to another forum and the parties can return to the Panel when they are done there. If the dispute is wrapped up with an allegation of bad faith bargaining, e.g., perhaps management has allegedly withheld requested information in violation of law and the existing contract, once again the Panel often puts its assistance on hold, while some other party deals with that.
In short, the Panel's ability to help parties is so surgically prescribed by law, the FLRA, and its own view of itself that it can take a single bargaining dispute and turn it into work for the FLRA, the Authority's General Counsel, an arbitrator, and the court of appeals before it is done.
Another Panel design flaw is its practice of meeting with the parties for only a day or two. The Panel has its own budget and calendar, and no matter what the wishes of the parties it will decide how much time to devote to their dispute, irrespective of the size of the dispute, the inexperience of the parties, or the contentiousness of their larger relationship. In some cases it does not meet with the parties at all, but requires them to submit written arguments and materials supporting their position--after which the Panel mails them its final and binding decision as to how their contract should be worded. Even where the Panel holds a face-to-face meeting, the person sent to meet with the parties rarely has the ability to decide the dispute by himself, e.g., is vested as an interest-arbitrator. The Panel designee only carries back to the rest of the Panel what he or she heard and thought so that they can make the final decision without ever interacting with the actual parties. One might call this the "Wizard of Oz" approach to dispute resolution because all that is missing is the green curtain and a booth full of levers, dials and switches.
Finally, there is the political element of the Panel. As if all of the above did not make the Panel unattractive enough to those of us actually responsible for the effective management of agencies and unions, the Panel is composed of seven Presidential appointees who are not confirmed by the Senate, not required to have any skill or even neutrality, and not accountable to the FLRA or courts in any effective way. The North Korean "Dear Leader" model of government comes to mind whenever I think about that.
The hangers-on, gadflies, and raconteurs among us hold out hope that all of this will be improved if the President merely appoints widely-respected, truly neutral, dispute resolution professionals to the Panel. Sadly, their hope is naive.
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No neutral working only a day each month can speed the investigation stage of the Panel process. These add weeks and weeks to the bargaining dispute and do nothing to shorten the time it takes parties to even get to FSIP. Nor will any seven neutrals be able to fix the Panel's jurisdictional limits. That would take Congress, or at least the FLRA.
A Panel of well-respected, professional, neutrals skilled in mediation and arbitration and who enjoy the work might be able to increase the face-to-face time parties get, but I doubt the Panel can fund the time needed for that to be done even with the more intractable disputes.
But perhaps the biggest reason not to count on these well-respected, professional neutrals is a little known, unpublished, self-imposed Panel rule that prohibits Panel members from doing federal sector arbitration work while on the Panel. Consequently, if the President wanted to select a panel from among those who are actually experienced in federal sector dispute resolution—not to mentioned proven and widely accepted, the selected neutral would have to sacrifice thousands in compensation to serve. That effectively bars the very neutrals with the best knowledge of the federal sector from serving on the Panel. The President is left with choosing either from among the neutrals who the federal sector parties have passed over or from those political groupies seeking a Presidential appointment no matter how unprepared they are to do the work or unacceptable to the parties.
Frankly, it is a ridiculous rule from where I sit. The parties have the ability to choose whomever they want to arbitrate their grievances and if they want a sitting Panel member, presumably they are competent to assess the potential for a conflict. On top of that ethical prophylactic, the Panel member can always refuse to take the grievance case or recuse herself from Panel business specifically related to those parties. Finally, any grievance arbitration decision can be challenged on the grounds that it was based on bias, the hearing was unfair, or that it violates law, rule or regulation.
The only people this rule protects are the politicos who could never compete if professional neutrals were in the competition.
Without exception time and experience as taught me that anyone interested in effective impasse assistance should adopt private med-arb. The advantages are so numerous it makes me wonder why anyone keeps the Panel's telephone number in their Rolodex.
Under private med-arb, the parties can hire any neutral they want as opposed to living with what the political process gives them. The parties can decide when the neutral enters their dispute, how long the neutral stays and when a decision must be issued. For example, they can decide that they will only devote two weeks to the bargaining and if they cannot settle it themselves, the neutral takes over immediately for three days. Pre-scheduling the neutral avoids waiting months to get on the neutral's calendar when the parties finally decide the neutral is needed. It also avoids the wasteful Panel investigation stage that might result in an order that they return to the bargaining table because seven neutrals they never talked to did not think they bargained effectively so far.
Med-arb parties also can arrange the process so that the neutral can provide one-stop assistance by empowering him or her to settle any related ULPs, information disputes, procedural questions, obligation to bargain issues and all but the most novel negotiability disputes. Indeed, if the neutral is empowered to act as a grievance arbitrator on those issues that could be grieved, those portions of the neutral's decision would be binding subject only to limited FLRA and judicial review.
Perhaps best of all, med-arb puts the parties face-to-face with the person who will decide the matter if they do not settle it themselves, not some representative of a seven-person body that they never get to see or address directly. In my experience, the neutrals who are good at med-arb are first and foremost skilled mediators. As the parties present their case, these neutrals gently intervene by--
- Telling one party that it misunderstood the other or missed a hint at a possible settlement,
- Controlling the tone of the bargaining table communications,
- Suggesting that a party's evidence and arguments do not seem persuasive and that it had better rethink its position,
- Asking a very suggestive question,
- Advising a party how and when to pitch a settlement offer,
- Asking why a certain solution has not been mentioned yet or considered,
- Helping one party fix the problem it has with the other's proposal rather than reject it outright,
- Structuring a package offer for the parties to work knowing that the neutral thinks it is a good idea, or even
- Informing the parties how he is likely to settle the matter if they do not make a better deal themselves.
Skilled med-arb neutrals also have less gentle techniques such as spotting and quickly settling one or two disputes that are holding up or blocking everything else and then sitting back and letting the parties do the rest. Or, they order a party that claims it does not have the authority to do something to bring to the table the person who has restricted them so the neutral can deal directly with the would-be backroom puppet-master. Or, they remedy illegal action on the spot, e.g., order a party to produce some information or lose the argument through an adverse inference. The indisputable sign of a truly great med-arb neutral is that there is no need for a formal decision on anything because the parties have reached a voluntary deal.
My union, NTEU, and the Internal Revenue Service have used private med-arb neutrals to help us settle the last ten term contracts dating back to 1982. When the Panel declared, pursuant to 5 USC 7119(b)(2), that any formal decision would not be binding unless it approved the specific issues going before the private neutral after we reached impasse but before we entered med-arb, we tactfully skirted that decision by merely orally agreeing that we would treat any decision as binding even if the law did not. Only once did one of us betray that commitment, and it was quickly rectified without the need for a Panel decision.
So useful has this process been that NTEU and IRS have just concluded a new term agreement that binds us to use private med-arb for all bargaining disputes, term and midterm. Technically, either party can reject the neutral's recommended decision and appeal to the Panel for a legally final and binding decision. This makes the process compliant with 5 USC 7119. However, there are formal and informal disincentives for rejecting a recommendation.
In contrast, at another major agency bargaining table we are entering our second year of negotiations because some management official there considers med-arb wrong for some reason he cannot verbalize—it is theological for all I can tell. As a result, this critical agency is operating without a contract, managing a single workforce under the residual and different practices of three prior bargaining units, addressing problems through costly litigation rather than negotiation, funding endless hours of bargaining, taking key managers out of the field to sit at a bargaining table, and enduring a midterm bargaining process that is even worse.
If the Panel is ever to be a competitive and viable alternative to private dispute resolution beyond the cost factor, it will have to bypass the investigatory stage of its current process, upon receipt of a petition for assistance immediately appoint a member or staffer to use med-arb to settle the dispute on his or her own--even over the phone if possible, and deal with jurisdictional complications by issuing a decision and leaving the parties to choose between taking the deal they got or squabbling over whether the Panel had the authority to do so. Perhaps the fastest route to change would be to make FSIP merely an office within FMCS that provides impasse services as soon as a mediator says the parties are ready for it. This would boost the mediator's influence, void the need for investigations, and offer the parties an arbitrator from the FMCS panel or even the option of vesting a mediator with the power to use med-arb free of change.
If you are still not convinced of the need for top-to-bottom Panel redesign, imagine you are an agency executive who just purchased state-of-the-art laptop computers that will boost productivity and they arrive in two weeks. As the word of the decision spreads, you get an e-mail from your LR Manager telling you that it likely will take a year or more to resolve any bargaining dispute through the FSIP. In the meantime, all the laptops need to be stored somewhere and unused. Or, imagine you are a union leader who just had a new unit certified and now has to tell everyone it may be a year or two before the first contract is complete. Pity them both.
© 2010 Frank Ferris. All rights reserved. This article may not be reproduced without express written consent from Frank Ferris.
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