AFGE Tackles Legality of FSIP Appointments

AFGE challenged the authority of the Impasses Panel seeking to overturn a decision issued to resolve a bargaining dispute in HUD.

AFGE and the Civil Service Reform Act of 1978

The federal government’s labor relations statute became law back in 1978 as part of the Civil Service Reform Act of 1978 (CSRA). President Jimmy Carter and AFGE’s national president at the time, Kenneth Blaylock, toured the country giving speeches urging Congress to pass the reform bill into law. No doubt, the former plumber who started his career and union involvement at Maxwell Air Force Base, Alabama created a successful career, and appearing on stage with a president, even an unpopular president, had to have been a very heady experience.

Obviously, the Civil Service Reform bill was passed into law.

Despite the bill’s passage, and AFGE’s strong endorsement of the bill, the new law was not widely praised within the union and its passage created problems for the union and for Blaylock as an avid supporter of the CSRS. As noted in a Washington Post article from 1986:

Blaylock’s reputation as a supporter of President Jimmy Carter’s civil service revision almost cost him the union leadership in 1978, when the AFGE convention withdrew support for the measure. A recount gave Blaylock the victory by about 3,000 votes of more than 215,000 cast.

Some members of AFGE and rival federal unions still blame Blaylock for his key role in what became the 1978 Civil Service Reform Act. “His greatest accomplishment and his biggest mistake,” said an AFGE local officer.

AFGE’s membership has dropped from almost 300,000 in the 1960s to about 180,000, although the union represents about 700,000 workers. AFGE lost roughly 1,000 members a month for several years under Blaylock, but a rejuvenated organizing effort has cut net monthly losses to about 400, he said.

The mantra in labor relations convocations at the time often featured comments from AFGE officials supporting their national president that “We need a law!” The reference was to eliminating the executive order, originally issued by President John Kennedy in 1960, and replacing that executive order, as modified by President Nixon, with a law that could not be easily canceled by a future president.

Despite the passage of time, those mixed emotions about the CSRA may still be alive and well within the federal government’s largest employee union.

HUD Locals Council 222 v. FSIP

A new court decision reflects the internal conflict. A decision by the District Court for the District of Columbia, AFGE, National Council of HUD Locals Council 222 v. Federal Service Impasses Panel, et. al, No. 20-2683 (March 14, 2022), was issued this week highlighting some of the advantages and disadvantages to the union in the CSRA.

The AFGE Council at the Department of Housing and Urban Development (HUD) was not happy with a decision from the Federal Service Impasses Panel (FSIP). In this case, the union argued that the Members of the FSIP were appointed in violation of the U.S. Constitution.

Ironically, the Impasses Panel was put into law and championed by AFGE in its efforts to substitute the CSRA for Executive Order 11491. With regard to the FSIP, the federal labor relations statute reads:

The Panel shall be composed of a Chairman and at least six other members, who shall be appointed by the President, solely on the basis of fitness to perform the duties and functions involved, from among individuals who are familiar with Government operations and knowledgeable in labor-management relations.

Labor Relations Statute and the FSIP

The Civil Service Reform Act could have been written to require Senate confirmation for Members of the FSIP. But, in its wisdom, that was not a requirement written into the federal labor relations statute. And, as a practical matter, in the 42 years since the law was passed until the Trump administration, this provision of the law had been accepted by federal employee unions.

The crux of the problem, from the union’s perspective, was that the union did not approve of the Panel Members appointed by President Trump. The union stated in a press release:

  1. Appointed FSIP members were not confirmed by the Senate as required under the Appointments Clause of the U.S. Constitution
  2. The recently appointed FSIP members do not meet the fitness requirements required by the Civil Service Reform Act
  3. Many of the recently appointed members’ current anti-union activities create a bias that deprives unions of due process under the U.S. Constitution.

Union Seeks to Overturn FSIP Decision in Court

In the current case before the Court, the union had challenged the ground rules imposed by the Panel but the union complied with the ground rules despite the challenge. The District Court for DC dismissed that argument in an earlier decision and again in the most current case.

The agency (HUD) again requested the assistance of the Impasses Panel when the negotiations over a new labor agreement again were at a standstill. The FSIP then issued a decision to resolve the remaining issues in contract negotiations. After that FSIP decision was issued, the union filed another case in court arguing the Members of the FSIP were not properly appointed and should not have jurisdiction in the current labor dispute.

Court Lacks Jurisdiction

In this case, the Court concluded it lacked jurisdiction to give the union the review it was seeking.

If this Court asserted jurisdiction and afforded the relief sought by Council 222, it would void a specific decision that the Panel issued just five weeks prior to Council 222’s filing of this suit….”Because the Union challenges specific Panel decisions, ‘[t]here can be no doubt’ that this Court lacks jurisdiction to review’ its claims in the first instance.” (quoting NATCA II, 606 F.3d at 787)…

AFGE worked to have the CSRA implemented and it was successful in this effort. There is a sense of irony that the union is now challenging the authority of organizations such as the FSIP more than 40 years after the law was passed when the authority was outlined in the law and it does not require Senate approval of FSIP Members.

Unions often gain advantages when they support political parties and nominees and that is occurring now under the Biden administration. They also will have disadvantages when becoming actively involved in supporting specific political candidates and one political party. No doubt, this could have been anticipated when the law was written although the specific disadvantage may not have been as apparent as it was under President Trump.

Perhaps the union leaders at the time thought the overall benefits gained with the passage of the CSRS outweighed the disadvantages. If that is the case, they were probably correct. Many of the advantages given to unions under appointments made by Democrats do not go away when there is a change of a political administration. Those disadvantages that may exist in the CSRA are still there, along with the advantages. No doubt, these would have been easier to correct before the law was passed.

About the Author

Ralph Smith has several decades of experience working with federal human resources issues. He has written extensively on a full range of human resources topics in books and newsletters and is a co-founder of two companies and several newsletters on federal human resources. Follow Ralph on Twitter: @RalphSmith47