01/20/2021
Biden Can Quickly Reboot Trump’s Federal Labor Impasses Panel
Jan. 15, 2021, 6:19 AM
· Unions ‘terrified’ of going before panel in Trump years
· More voluntary settlements expected under Biden
President-elect Joe Biden has an opportunity to swiftly revamp a federal panel that’s been accused during the Trump administration of unfairly siding with agencies in labor contract deadlocks with unions.
The Federal Service Impasses Panel has allowed agencies to “turn back the tide” against collective bargaining in the federal government, said Joe Schimansky, who was the agency’s executive director from 1996 to 2016.
Replacing the current panel of Trump appointees quickly is doable, as shown by the increasing speed with which recent presidents have moved to change the composition of the FSIP, Schimansky said. Senate confirmation isn’t required for appointees to the panel, which currently has 10 members.
“I think Biden will move very quickly to do what the unions want and fire the panel members,” he said.
Government unions can expect Biden’s impasses panel to focus on voluntary agreements to settle bargaining disputes rather than issuing decisions that mostly side with agencies, Schimansky said.
In the past four years, unions have repeatedly filed legal challenges to the panel’s authority to impose labor contracts. They’ve also alleged that agencies are going through the motions of collective bargaining and then declaring impasse, which allows the board to step in and impose labor contracts that are biased toward management.
Bob Gilson, a current member of the FSIP, said any suggestion that the panel in place now isn’t professional is incorrect.
“I’ve been in the federal government labor relations program since 1974. The people I’ve worked with at the panel, both the staff and the membership, have been among the most professional people I’ve ever worked with,” he said.
Gilson worked as a federal labor relations director and then as a contractor for federal agencies on labor issues before joining the panel in October 2019.
The White House and its Office of Management and Budget didn’t respond to emails seeking comment.
‘Wreaked Havoc’
The current panel has “wreaked havoc” on the federal labor relations system by imposing labor contracts on unions that mostly reflect what agencies want, said Ibidun Roberts, an employment and labor law attorney at Roberts Labor Law and Consulting, L.L.C., in Columbia, Md.
“Before, both agencies and unions tried to avoid the panel, because they didn’t know what they would get. Now, agencies are rushing to the panel” while unions “are terrified” of going before the FSIP, said Roberts, who’s worked as a staff attorney for both federal employee unions and agencies.
President Donald Trump in May 2017—about four months after he became president—dismissed all members of the FSIP and then moved that summer to begin putting a new panel into place. President Barack Obama also acted quickly, dismissing the panel in March 2009 and naming new FSIP members that September.
By contrast, President George W. Bush dismissed existing panel members and began appointing his own members a year after he took office. President Bill Clinton didn’t appoint his first panel members until October 1994, close to two years after he was inaugurated.
“What’s been happening is that the time period for removing members of the Federal Service Impasses Panel has become shorter and shorter,” Schimansky said.
The panel under Democratic administrations generally favors and enables collective bargaining, while Republican panels tend to restrict the extent to which agencies are required to bargain with unions, Schimansky said, adding that that’s been especially true under Trump.
Legal Challenges
Unions representing employees at the departments of Housing and Urban Development and Veterans Affairs, along with the National Weather Service and the Social Security Administration, are among those with pending cases challenging panel decision.
The unions might be tempted to drop the lawsuits once Biden is sworn in, because a ruling in their favor could complicate installing a new panel, Schimansky said.
Roberts, however, said the unions won’t necessarily withdraw the lawsuits.
“I don’t know what calculations unions will make. If they are successful, Biden nominees will need to be confirmed,” she said.
The National Weather Service Employees Organization won’t drop its lawsuit against the FSIP unless and until the Biden administration acknowledges that the contract between the union and the agency “is invalid,” said Richard Hirn, a Washington-based attorney who represents the union in the litigation.
“We are not accepting the illegal FSIP decision,” he said. The National Weather Service and its union were making progress in their labor talks and the panel never should have asserted jurisdiction over the matter, Hirn said.
The NWSEO also is arguing that panel members should be Senate-confirmed. Even if the court agrees, it wouldn’t prevent Biden from dismissing the current panel, Hirn said.
The weather agency, the VA, and the Social Security Administration declined to comment on pending litigation. The Association of Administrative Law Judges, which represents in-house judges at the SSA, also declined to comment.
The American Federation of Government Employees, which is pursuing FSIP litigation on behalf of workers at HUD and the VA, didn’t immediately respond to requests for comment.
Top Priority
A top official at a union that represents federal employees at NASA and other agencies suggested one solution is to eliminate the panel, forcing agencies and unions to rely on arbitration instead.
“Arbitrators are independent, they have no skin the game,” unlike a panel appointed by the president, said Matt Biggs, secretary-treasurer of the International Federation of Professional and Technical Engineers.
One option for quickly restocking the FSIP once Biden has dismissed its current members is to turn to former panel members, said Marick Masters, a professor at Wayne State University’s Mike Ilitch School of Business and former director of the school’s labor studies program.
Obama’s appointees had plenty of labor relations experience and many of them likely would be available to serve in the Biden administration, Masters said.
“It’s only been four years,” he said.
To contact the reporter on this story: Louis C. LaBrecque in Washington at [email protected]
