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AFGE Sues Impasses Panel for Improperly Issuing Decisions
September 03, 2019
Categories:
SSA, The Insider
AFGE has filed a lawsuit against the Federal Service Impasses Panel (FSIP) alleging that it exceeded its authority when it issued a decision imposing several anti-worker provisions in a collective bargaining agreement between AFGE and the Social Security Administration (SSA).
In the lawsuit filed in the U.S. District Court for the District of Columbia , AFGE argues that the panel’s recent decisions are illegitimate and should be invalidated because:
- The statute creating the panel does not allow the panel to operate unless it has a full seven members. When the panel issued its decision in the SSA case, it only had a chairman and five members. The law contains no provision that gives the panel or its members the ability to exercise their powers during a vacancy. This contrasts with a provision creating the Federal Labor Relations Authority (FLRA), which explicitly states that the authority can continue to exercise its powers even if it doesn’t have all three members.
- The panel’s members were not constitutionally appointed. Panel members are “principal officers” of the United States because they have significant authority and issue final and binding decisions that are not subject to supervision. Under the Appointments Clause of the United States Constitution, principal officers may only be appointed with the advice and consent of the Senate.
- In the SSA case, the panel exceeded its authority because it issued a decision that violated the Federal Service Labor-Management Relations Statute (FSLMRS), which establishes collective bargaining rights for most federal employees.
The panel’s decision “will harm AFGE’s abilities to represent its members and carry out its statutory obligations,” AFGE said in the lawsuit.
The Panel
In 2017, President Trump discharged all FSIP members and replaced them with new appointees. But when the terms of three members expired earlier this year, the president reappointed only two of them, leaving the panel with a chairman and only five members.
The panel is tasked with resolving impasses between unions and agencies in contract negotiations. The Trump administration’s panel, however, has been rubberstamping anti-worker proposals from agencies that are similar to the provisions in Trump’s executive orders, which seek to gut employees’ workplace rights and destroy unions. Agencies have rushed to declare impasses during negotiations in order to send their proposals to be imposed by the panel.
At SSA, the agency proposed, and the panel greenlighted, several anti-worker provisions, including those restricting the union’s ability to represent bargaining unit members as required by law.
In the lawsuit, AFGE argues that the panel violated the FSLMRS when it imposed SSA’s proposals on the parties. The FSLMRS requires agencies to grant union representatives official time to perform representational duties in any amount the agency and the union agree to be “reasonable, necessary, and in the public interest.” The panel found that both AFGE’s and SSA’s proposals did not meet the criteria, but went on to impose SSA’s proposal on the union, severely restricting the hours union reps could use to represent employees.
The panel also violated the law when it imposed SSA’s proposal to severely restrict the union’s use of SSA facilities and communications systems. The law grants union representatives the right to represent bargaining unit employees. SSA’s proposal restricts the union’s ability to represent workers by eliminating the union’s use of SSA office space – even if the union agrees to pay for it.
“The closure of AFGE offices at SSA will chill union participation by reducing AFGE’s presence at worksites where disputes arise,” said AFGE in the lawsuit.
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