Best listening experience is on Chrome, Firefox or Safari. Subscribe to Federal Drive’s daily audio interviews on Apple Podcasts or PodcastOne.
The American Federation of Government Employees has sued the Federal Service Impasses Panel (FSIP) over its recent decision to rewrite about a dozen bargaining proposals for the Social Security Administration.
The panel is supposed to have seven presidentially appointed members, who together serve as a component of the Federal Labor Relations Authority. But the FSIP has been operating with only six members since late May.
Because the panel lacks a seventh member, the FSIP doesn’t have the authority to resolve an impasse, AFGE argued in its lawsuit, which it filed earlier this month. Specifically, the union argued the May 29 decision the impasses panel issued on the Social Security Administration’s collective bargaining agreement with AFGE should be invalidated.
Any decisions that come from the FSIP should be “void and vacated,” AFGE argued, because the panel’s members never received Senate confirmation, which the union said is a violation of the constitution’s appointments clause.
“The [Federal Service Labor-Management] Statute contains no provision that grants the panel or its members the ability to exercise any of the panel’s powers in the event of a vacancy,” the union wrote in its complaint.
AFGE is seeking injunctive relief from the FSIP’s May 29 ruling on SSA’s contract with the union. It filed suit in the U.S. District Court for the District of Columbia and charged the impasses panel, along with FSIP Chairman Mark Anthony Carter and the FLRA, on six counts.
“The amended complaint asserts that the FSIP chairman and panel members have been improperly appointed to their positions without the advice and consent of the Senate, which is a violation of the appointments clause,” an AFGE spokesman said in a statement to Federal News Network. “As a consequence, our complaint asserts that FSIP’s May 29 decision invalidating 12 articles in AFGE’s contract is invalid.”
If AFGE is successful, the case could have a sweeping impact over collective bargaining negotiations throughout government, as several agencies have turned to the FSIP to resolve disagreements between management and federal employee unions.
AFGE has previously said agencies feel “emboldened” to take their disputes to the impasses panel, because they believe the FSIP will largely rule in management’s favor.
The panel did, in fact, side mostly with the Social Security Administration when the agency brought forth its dispute with AFGE back in January. In its lawsuit, AFGE cites two specific FSIP proposals that the union said violate the 1978 Federal Service Labor-Management Relations Statute.
First, the impasses panel cut official time to 50,000 hours a year for the union’s bargaining unit of 45,000 SSA employees. SSA union representatives used more than 255,000 hours of official time in fiscal 2016, according to the most recent data from the Office of Personnel Management on this topic.
“The panel’s decision in SSA and AFGE will harm AFGE and its members by diminishing the overall number of AFGE representatives available to assist employees,” the union wrote in its lawsuit. “The decision will also harm AFGE and its members by restricting when this now smaller number of AFGE representatives will be available to assist employees because it places an arbitrary cap on official time. These restrictions will preclude AFGE representatives from fully representing bargaining unit members and impair AFGE from presenting and processing grievances.”
AFGE also disputed another ruling from the impasses panel in the lawsuit: the FSIP’s decision to prevent the union from using agency office space, supplies and other services. SSA estimated the value of these costs at roughly $930,000.
“This will harm AFGE’s abilities to represent its members and carry out its statutory obligations,” the union wrote in its complaint. “The decision will also result in AFGE’s access to SSA facilities being disparately restricted.”
This isn’t the first time the impasses panel has weighed in on contentious bargaining negotiations between an agency and its union — and rewritten portions of the contract in the process.
The Department of Health and Human Services, for example, also turned to the impasses panel to resolve bargaining disagreements between the agency and the National Treasury Employees Union. The panel earlier this spring ruled on 22 proposals from both HHS and NTEU and mostly sided with agency management.
The panel’s decision paved the way for changes to HHS’ telework program, additional limits on official time and a new mandate requiring NTEU to pay rent to use the agency’s office space.
AFGE is also in the middle of bargaining negotiations with other agencies, including the Departments of Veterans Affairs and Housing and Urban Development. VA’s bargaining proposals, which the department announced earlier this year, would also remove a few dozen articles from AFGE’s existing contract if implemented.
AFGE’s latest lawsuit comes as the union, along with several other federal labor organizations, are still locked in legal battles over the president’s workforce executive orders. The U.S. Court of Appeals last month overturned the decision from a lower court, which had initially invalidated nine key provisions of the president’s workforce executive orders.
Federal employee unions are expected to ask for a rehearing on the case in the coming days before the appeals court lifts in the injunction on the president’s EOs.