In a case (2019 FSIP 019) involving over the second largest Federal employee bargaining unit (only one larger is Dept. of Veteran’s Affairs), the Federal Service Impasses Panel (FSIP or the Panel) stressed the need for the parties appearing before it to focus on not just relying on argument or presuming an entitlement but producing proof of their need for a provision.
AFGE issued a press release headlined “Trump Panel Greenlights Management Assault on Social Security Workers’ Rights, Union Says”. According to AFGE this “forced contract” will:
- Eliminate over 1,400 memorandums of understanding and supplemental agreements that were previously part of the collective bargaining agreement;
- Allow management to unilaterally exclude employees from telework, disrupting their lives and schedules;
- Eliminate current parking arrangements for all employees, potentially disrupting daily commutes and transit schedules;
- Slash by 80% the amount of time union representatives can spend representing employees;
- Deny union officers the office space currently provided by the agency; and
- Impose the contract terms for seven years.
According to the Panel, Social Security Administration (SSA) and the American Federation of Government Employees (AFGE) resolved 40 articles and brought 12 to FSIP on which they could not agree.
This is a complex case that must be carefully read and analyzed by practitioners as a number of apparent long-held assumptions will no longer drive Panel decision making. I read this case as a return to a once held Panel standard that has, in recent years been honored only in the breach. That standard held that parties should seek to bargain issues rather than taking them to the Panel as the Panel will seek by its decision to encourage bargaining deals rather than dumping them in the Panel’s lap.
There’s no way I can cover all of the orders in this decision herein, so I’ve chosen those that I think are most likely to produce the bigger impact on bargaining assumptions by both Agencies and unions.
It is also a little frustrating that the Panel referred to but did not include the Agency and union proposals (or at least I can’t find them on their website) that would help us understand this case much better. I will try to get a copy and ask the Panel or, failing that, FedSmith to post them.
Update: The FSIP has posted these documents. Our thanks to Kimberly Moseley, Executive Director of the FSIP, for her assistance in getting this information out to the federal community.
Pre-existing MOUs and Supplemental Agreements
The Panel ordered language that would terminate about 1046 MOUs and Supplemental Agreements accepting the Agency case that everything in those agreements could be incorporated in the new Collective Bargaining Agreement.
Duration of Seven Years v. Two
The Agency showed that a renegotiation cost about $4.7 million each time. The union argues, in essence, so what, the Agency has the appropriated funds to cover. The Panel said:
“Management did not simply invent this figure. Rather, it originated from sworn statement evidence provided by Agency officials. The Union did not dispute these figures, choosing instead to essentially argue that funding is available due to Congressional appropriations. The Panel believes it is appropriate to minimize the reoccurrence of the Agency’s cited figures. Thus, it is proper to impose a contract duration of 7 years.”
Keep this rationale in your forebrain for a minute or so; money is about to come up again (and again).
Union Office Space and other Agency Paid Services
The Agency proposed eliminating dedicated union office space but offered to make available space for union meetings upon reasonable request. Citing a sworn statement from the Agency’s Financial Office, the previously provided space cost the Agency $930,462.00. The union gets $10,345,834.00 in dues. The Panel said, “It is only fair, therefore, that the Union be expected to share some costs for Agency resources.” The Panel went on to say,
“A key disagreement is how much the Agency could save by eliminating this space. The Union does not dispute the Agency’s cited figure, rather, it maintains that this figure accounts for space that is already present regardless. However, this space is present because the Union is currently utilizing it. The Agency’s argument is that freeing up that space would free up those funds. Additionally, the Agency is willing to provide the Union with space for meeting usage. The Union cites no legal authority that requires Management to provide it with a dedicated office space. Finally, the parties dispute how much space is allotted to other entities. The Union did not provide evidence to support its claims that its other cited entities receive space, however. On balance, then, the Agency’s proposal is most appropriate.”
Panel Will Not Exclude Most Performance Based or Adverse Actions from NGP
The Panel relied on a Circuit Court Ruling, AFGE v. FLRA, 712 F.2d 640 (D.C. Cir. 1983), favoring a broad scope grievance procedure.
Union to Pay Travel for Witnesses at Arbitration
Citing the Union’s $10+ million in dues, the FSIP did not see this as an Agency responsibility to cover.
Increased Agency Merit Promotion Flexibility
In addressing the Agency’s proposal to reduce Areas of Consideration to regions as opposed to nation-wide, the Panel said,
“The Agency’s limitation on areas of consideration is also appropriate because it does not force the Agency to focus on certain areas when filling vacancies. Instead, Management will have greater flexibility to examine whatever areas may be appropriate for particular positions.”
Grants Agency Proposal for a 50,000-hour bank of Official Time v. 250,000 hours in Expiring CBA & Includes Time Spent on EEO Complaints
The decision is well-worth reading on this but the gist of the Panel’s thinking appears captured in the following:
“The Union’s proposal calls for 230,000 hours as a “compromise” from its original position of 250,000 hours. According to the Union, this figure represents “historical data” and is necessary in order to sufficiently represent a unit of its size. However, the Union did not actually offer this “data,” nor did it provide qualitative evidence that could be used to gauge its claim that its requested amount of time is necessary for representational purposes. By contrast, the Agency put forward considerable data that official time requires a significant devotion of time, resources, and taxpayer funding to activities that are not a part of the Agency’s core mission. The Union has not rebutted this data.”
Conclusion
There is a lot to this decision, and I don’t believe the above does justice to its scope and the demands it will place on parties to get their respective acts together before they appear before this Panel. I will sum it up by suggesting that this FSIP is strongly suggesting Prove it or Lose It!
As always, anything you believe is an opinion, may be, but it is mine alone.
