There are currently absolutely zero enforcement mechanisms available to Federal sector labor organizations (unions) to enforce any rights under the Federal Service Labor-Management Relations Statute (the Statute) and to enforce any rights under a negotiated collective bargaining agreement (CBA).
Unfair Labor Practices (ULP)
Let’s start with unfair labor practices. There currently is no General Counsel or Acting General Counsel of the Federal Labor Relations Authority (Authority). Thus, no unfair labor practice (ULP) complaints can be issued to enforce the Statute.
Although one of the five FLRA Regional Directors can have ULP charges investigated, make a preliminary merit decision, and attempt to resolve the ULP charge, no ULP complaint can be issued without a General Counsel or a properly appointed Acting General Counsel, and there is neither.
Thus, agency unilateral changes (such as terminating telework and remote work, a reduction in force, a reorganization, a realignment) can be unilaterally implemented without fulfilling the statutory bargaining obligation. If there was a General Counsel (or Acting General Counsel), a ULP complaint could be issued, the Authority could approve a General Counsel request to seek appropriate temporary relief in a U.S. District Court. The General Counsel could seek appropriate temporary relief (such as a restraining order) and be successful in enjoining the illegal unilateral agency action. That remedy is not available today because there is no General Counsel.
Federal Service Impasses Panel (FSIP)
Let’s talk about the Federal Service Impasses Panel (FSIP).
Under decades of Authority case law, an agency cannot implement a change in a condition of employment without first fulfilling the statutory bargaining obligation – which means bargaining to an agreement or resolution of an impasse.
Some unions have historically used the FSIP to delay the implementation of a change, but there is no FSIP. No agency is going to wait for four years to implement a change while waiting for a presidential election and the possibility of a new administration appointing an FSIP and then obtaining an impasse resolution. Instead, agencies may attempt to bargain to an agreement and then unilaterally implement if unsuccessful at obtaining a quick agreement and avoiding an impasse – or agencies may simply completely ignore the union and implement the change since there is no FSIP to resolve an impasse – or General Counsel to remedy the unilateral change ULP.
Federal Labor Relations Authority (FLRA)
Now, let’s talk about arbitration and the Authority.
Let’s say the union attempts to enforce a contract provision or an unfair labor practice through the negotiated grievance procedure. After the agency denies the grievance, the union can invoke arbitration.
After waiting four months or more for the arbitration hearing, paying for representation if not provided by the union itself, and paying exorbitant fees to the arbitrator for hearing and “study and writing” time, and waiting four months to a year for the arbitrator’s decision—and even assuming the union wins on the merits and obtains a viable remedy—the agency will file exceptions with the Authority—meaning that the arbitration award is not final and binding.
The Authority currently has one Republican and one Democratic member. It is more than possible that the Members will disagree on the agency’s exceptions and not issue a decision. So, the Union has expended considerable time and money and received absolutely nothing in return.
Let’s assume the Authority Members agree and uphold the arbitration award, but the agency does not comply. The only way to obtain enforcement of a final arbitration award is through the ULP procedure. And behold—there is no General Counsel or Acting General Counsel to issue the unfair labor practice complaint to enforce the arbitrator’s award.
So—some agencies may attempt to do the legal thing and negotiate, hoping to get a reasonable agreement on the negotiable aspects of the change—but unilaterally implement if there is no agreement and an impasse. Other agencies may just ignore the union. In either situation, there currently are no enforcement mechanisms to enforce the Statute or a CBA.
Going Through the Courts
How about the courts?
Should a union attempt to enforce the Statute or a CBA provision in a U.S. District Court, the civil action would most likely be dismissed for lack of jurisdiction.
While there may be a U.S. District Court judge out there of the approximately 670 who may assume jurisdiction because the administrative enforcement mechanism is not working—such an action would most probably be short-lived by a U.S. Court of Appeals. Plus, unless a national union initiates a court action, most unions at the level of representation do not possess the expertise and resources to initiate and prosecute U.S. District Court and Circuit Court actions.
Conclusion
So, what should a union do? These are difficult times for labor organizations and employees. Hundreds of thousands of bargaining unit employees will lose their positions, and unions will lose multiple millions of dollars of dues.
As to changes, old tactics used by some unions of attempting to delay changes by drawing out midterm ground rules negotiations and by negotiating to impasse over the change absolutely will not be productive or successful. Instead, if given the opportunity, unions should seek to expeditiously obtain agreement on reasonable negotiable proposals relating to a change that an agency can agree to and that assist unit employees as the change is implemented. Unions can no longer delay the change.
As to enforcing CBAs, unions should use their best efforts to present issues to the agency informally in an attempt to reach a reasonable resolution at the lowest level possible without the necessity of formal grievances and an ineffective and costly arbitration.
Dave Feder was a Senior Executive for 23 of his 30-year government career. He served as the Deputy and Acting General Counsel of the FLRA and as the Associate Commissioner for Labor-Management and Employee Relations at SSA. Dave has spent the past 20 years as an expert consultant to numerous federal sector unions and federal agencies.
