Impasses Panel Signals Policy Shift: Want It? Prove You Need It!

A recent case decision suggests the FSIP has shifted from its past philosophy. The author provides an analysis.

In one of its first cases involving an Agriculture Agency, Rural Development, and the American Federation of State County and Municipal Employees, the new Federal Service Impasses Panel (the Panel) has indicated a major shift away from the past.

The case, 2017 FSIP 060 dated January 2, 2018, involved four issues, Official Time, Core Hours, Merit Staffing and Telework. Some of the issues included complex sub issues as well.

What is significant is the requirement by this Panel that the parties actually prove the case for their proposals objectively.  Prior Panels have made many assumptions supporting the policies of the administration that appointed them or their own view of the application of the Federal labor law. One  such prevailing theory has been the duty of the “neutrals” to level the union-management playing field, a n idea in no way supported by the Federal labor statute.

Let’s look at what the Panel ruled and its stated reasons for doing so.

Official Time

The union started out asking for 100% official time for the local president. It argued that there was sufficient workload to support such a request. By the time the issue got to the Panel, The union reduced its proposal to asking that 1-3 representatives get 3 days per week.

The principal union argument appears to be a comparability claim involving five other Agriculture locals.  The Agency case to reduce the amount of official time said that in the previous seven years, the union had filed three grievances, two unfair labor practices, three representation petitions, “several” bargaining issues and time spent in the Labor Management Forum (now defunct).  The Agency offered the union president two days per week or two representatives one day each.

The Panel ordered one day per week saying, in essence, that the union had based its claims on assertions for both past use in this recognition and by providing no supporting data for the “comparators” it offered.  It appears clear, to at least this reader, that the new Panel is not locked into the idea that a union has a guarantee of any official time but must prove its need to sustain its proposal.

In a related issue, the union wanted to retain language that continued to provide official time for labor management forums.  The Panel found that this wouldn’t fly, not because the authorizing Executive Order had been revoked, but because the union did not establish a “robust” workload to justify the inclusion of the Forum which no longer operates.

Core Hours

The union sought to change core hours from the current 9:00 AM to 2:30 PM to 9:30 AM to 2:30 PM.  It asserted that a 9:30 start time would better serve a family-friendly policy by allowing employees more time to drop the kids off to school.

The Agency disagreed saying that a 9:00 start was a long-established policy and that the union had failed to prove the need for change.  The Panel stated that the hours had not caused any systematic problems for employees and ruled in the Agency’s favor.  Again, the message appears clear i.e., want it – prove it.

Merit Staffing

The union wanted all “best qualified” applicants in the bargaining unit interviewed while the Agency wanted to limit required interviews to five applicants.  Citing economy and the strain on resources an “interview all” policy would create, the Panel ordered adoption of the Agency’s proposal.

Telework and Administrative Leave

There were four telework issues.  The first addressed when employees on telework would get administrative leave.  The Panel ordered imposition of the Agency proposal as it was more consistent with OPM’s policy and interpretation of applicable law.  The Panel appeared to be saying that the union was offering its language for the sake of doing so rather than for a provable purpose.

In the second issue, the union wanted language essentially saying that all eligible employees might be authorized up to full time telework.  The Agency objected, stating that the union proposal might cause confusion among the workforce. The Panel agreed and excluded the union proposal from the contract.

The third issue involved the use of telework “adjacent” to another scheduled day off.  The union claimed it was trying to prevent the Agency from acting arbitrarily.  The Panel found that the union’s language was equally arbitrary without any proof of need and rejected its proposal.

Regarding the last issue at impasse, the Panel decided it was not its place to interpret the statute at issue and ordered the parties to adopt language that the matter in dispute would be done in “accordance with applicable law,” thus putting the burden on the challenging party to make a case in the appropriate forum.

Wow!! A Federal Agency within the ambit of the Federal Labor Relations Authority staying out of a legal interpretation. I never thought I’d live to see it. The previous FLRA majority never saw a law it wouldn’t interpret.

The Upshot

It appears we now have a “want it, prove you need it” Panel. One of the prior Panels’ longstanding claims was that “demonstrated need’ was their most important consideration. These guys appear to be taking that seriously for the first time in a long time. Practitioners! Get your acts together.

This case will likely be read by our union brothers and sisters as the end of civilization as they knew it.  Maybe that’s not such a bad idea. As always, opinions you perceive herein are mine and I am solely responsible for making them.

17 FSIP 060

About the Author

Bob Gilson is a consultant with a specialty in working with and training Federal agencies to resolve employee problems at all levels. A retired agency labor and employee relations director, Bob has authored or co-authored a number of books dealing with Federal issues and also conducts training seminars.