FSIP Rethinks Union Rights and Official Time

New members on the FSIP are making a difference on decisions resolving disputes between agencies and unions.

In a recent case (2018 FSIP 077) dated April 1, 2019 and involving DHHS and NTEU, the Federal Service Impasses Panel (FSIP or the Panel) addressed a number of disputed issues involving the parties’ Collective Bargaining Agreement (CBA) negotiations. All the issues are worth reading by practitioners.

This is a long article already, so I’ll limit my comments to those articles addressing union rights, union access to Agency facilities and official time. 

Relationship to Trump Order

This case dismisses the union’s arguments that the issues were tied up with President Trump’s Executive Order now at litigation, at least in part, before the D.C. Circuit Court of Appeals. Please read the entirety of the FSIP’s language (below) but the gist is:

“Aside from its practical concerns, the Union also objects to the above approach on the grounds that it is inconsistent with the court’s decision in Trump.  It argues, essentially, that even proposing language that is similar to the enjoined Executive Orders impermissibly gives effect to those Orders.  However, nothing in the Trump decision supports this contention or otherwise prohibits agencies from taking such actions.  This argument, then, is rejected.” (My Emphasis)

In other words, Agencies may put on the bargaining table any legal proposal. So, if the Trump Order has a good idea in it, an Agency can appropriate that idea in its proposals as if the idea came from any source. Who would have thought an Agency might actually be inspired by a President’s good ideas?

How the Panel Views Union Benefit Proposals

As this Panel has said before to parties before them, don’t assume your current language is forged in iron; be ready to prove its worth.

In the case of official time, the Agency failed to prove that having no official time was supported by any records. (There’s a lesson in that). Regarding facilities provided, the Panel stated that it saw no reason to treat the union differently from other non-governmental users of Agency equipment, space and services. This is a long-term big win for Agency management. 

Learning from This Decision

In order to make it easier for readers, I’ve cut and pasted from the decision and from the Agency’s last best offer (see the document included at the end of this article). I’ve also reformatted text but did not change a word or punctuation mark.

With each article, the Panel’s discussion is first, followed by the directed language. Every Agency negotiator and executive who guides negotiations should read what’s in the attachment below. The links to PDFs of union and Agency offers are at the bottom of the decision.

Don’t Forget the Rest

There are a number of significant issues addressed by this decision. One which got my attention was a proposal on the use of government space.

Apparently, the Agency went too far in pushing for control while failing to justify what it thought it needed. Since space is an issue that could use some attention, all should learn from the Panel’s conclusions and get their respective facts and acts together.

As always, any opinion you believe you discern is mine alone.

Highlights from 2018 FSIP 077 by FedSmith Inc. on Scribd

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.