Losing a case is no fun. Anyone working in the federal labor relations field, whether working for an agency or a union, is well aware of this (or you will be the first time you lose).
And some cases are bigger than others. Often, federal labor relations cases that go before a third party don’t have much impact beyond the borders of your building or your parking lot. But, even if you lose a third party decision on a case as minor as who gets to park where, you have egg on your face and you feel like everyone knows you were responsible for losing a case that took considerable time and money to prepare and present.
If you add to this mix a case that gets national publicity, a year in which a presidential election is being held and unions are assailing the current president, assertive personalities in a large agency and a large union, add in a local union leader with larger political aspirations and the stage is set for a continuing saga of dashed hopes, recriminations and plenty of blame to go around.
There is also plenty of room for congratulations and good feelings–depending on where you happen to be sitting.
Any experienced labor relations professional knows that taking a case before a third party can be a risky proposition. There is a strong tendency to talk to others in an organization with a similar point of view (i.e. they agree with your position). But, when going to an outside agency which has the authority to issue a final, binding decision, everyone is rolling the dice and hoping for the best. The strong feelings and beliefs of your colleagues who think like you do may not be relevant. There is always another point of view, and that other point of view may be persuasive to an outsider deciding your case.
Here is a case in point. The Federal Service Impasses Panel (FSIP) recently upheld arguments by agency representatives from the Centers for Medicare and Medicaid Services in Baltimore. The agency prevailed before the FSIP on issues that may have a ripple effect throughout the government’s bureaucracy: smoking and dress codes.
The campus for the agency now has a no smoking policy. All agencies have a no smoking policy. But this one is different. It is really a no smoking policy. Employees can’t smoke there. Not in the hallways or the bathrooms, not on the walkways outside the buildings, not even out in the parking lot away from other people.
And, with regard to dress codes, the Panel agreed with the agency that there was an image problem presented to the public by employees. “We are also persuaded that the Employer’s proposed dress code is a legitimate response to perceptions concerning the image currently projected by some of the Agency’s employees.” So, presumably, employees will have to leave the gym shorts and flip flops at home and report to work that convey a favorable, professional image to the public doing business with the agency.
All in all, the agency prevailed on all major issues it presented to the FSIP. The case has garnered publicity in the Washington Post and in labor relations conferences and seminars and is likely to lead to other agencies making similar proposals on these issues.
In short, the agency took the lead on a couple of controversial issues and it won. The union doesn’t look too good as a result of the Panel’s decision. And, to complicate the issue, one of the influential union leaders who worked at the local level on these issues is now the National President of AFGE.
One public union response was to hold a rally in front of the offices of the Federal Labor Relations Authority and the Federal Service Impasses Panel.
And, after rallying outside the offices of the Panel and accusing its members of engaging in “anti-union, anti-employee, anti-collective bargaining, and anti-logic opinions” and asserting that the Panel has “lost all credibility,” the Washington Post reports that the union is going back to the FSIP and requesting that the government agency should try again to get the decision right the second time around.
An obvious problem is that the decisions of the FSIP are not subject to appeal. The Panel does not have to reconsider a case and, in fact, is very unlikely to reconsider doing any case over again–even in response to public allegations of of engaging in “anti-union, anti-employee, anti-collective bargaining, and anti-logic opinions.” And while holding rallies in the streets to protest the new contract language on dress codes or smoking at an HHS facility, there is no avenue for an appeal of the decision which Congress intended to be final and binding on all parties.
In other words, each party gets one shot and you better do it right. The union in this case apparently feels losing was not the fault of its strategy or the quality of its proposals or even the ability of its negototiators but, instead, lays the blame on incompetence or faulty logic of the third party making the decision. No doubt, numerous other agency or union representatives have had similar beliefs after losing a case and is why representatives are frequently exhorted to reach agreement without going to a third party.
As might be expected, the agency is not issuing any press releases about the case but it is moving ahead and implementing a broader no smoking policy in some of its other facilities.
Two sources familiar with the labor negotiations have confided their surprise that the union ever let the smoking issue get to the Panel as it was written. According to one source familiar with the negotiations, the agency’s position was originally written up as a way to get the union to engage in negotiating on the subject and it was expected its final position would change before going to the Panel. But, as sometimes in negotiations, the union reportedly did not see fit to bargain on the subject, the agency proposal was not modified and it went to the Panel in its entirety.
No one can foresee the impact of the decision but it is possible other bargaining teams are likely to now wade into the area of dress codes for employees and more stringent smoking policies because of the dangers of second hand smoke.
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