At an Impasse

Bush-appointed labor panel is not known for compromise.

President Bush reshaped negotiations between federal unions and agencies in early 2002 when he fired all seven members of the Federal Service Impasses Panel and appointed panelists with significantly different professional backgrounds and experience. A Government Executive analysis of 150 written decisions by the panels at comparable periods in the Bush and Clinton administrations found that the new group issued fewer compromise solutions and sided with agencies more frequently than their predecessors.

Union leaders say the panel's decisions and reputation are influencing contract negotiations even before they reach an impasse, due to fear that the Bush appointees will not give union arguments a fair review.

This perception influenced the National Labor Relations Board Professional Association, for example, in its 2000 contract negotiations with NLRB. "We were in the middle of negotiations when the administration changed," says Anne M. Lofaso, a former vice president of the union who is now an associate professor at West Virginia University College of Law. "Certainly, the perception was we better get a contract as soon as possible. . . . I remember that very vividly, that the message I got . . . was to avoid the impasses panel, because it wasn't going to be pretty." The lawyers managed to agree on new contract terms without going to the panel.

William Fenaughty, a business representative for the National Federation of Federal Employees, echoes her concern. "A person very high up at FSIP, whose name I will not tell you, did a training seminar for us" after the 2000 election, he says, "and said, 'If you want to have a better shot at impasse issues before the panel, you should have done a better job last November.' "

The panel has seven paid members who serve part time during their five-year terms. Unlike the National Labor Relations Board, which has members from both parties, all the panelists are appointed and can be fired by the president. Their appointments are not subject to confirmation.

The Clinton and Bush administrations appointed distinctly different members. Seven of the nine Clinton appointees had extensive backgrounds in neutral dispute mediation. Marvin E. Johnson founded the Center for Alternative Dispute Resolution at Bowie State University. Edward Hartfield headed the National Center for Dispute Settlement. Bonnie P. Castrey, Clinton's second panel chair, spent 10 years as a commissioner for the Federal Mediation and Conciliation Service. Seven of them had long experience in labor law. Stanley Fisher was president of the Federal Bar Association and helped draft the Uniform Arbitration Act and the Model Employment Termination Act. Betty Bolden, Clinton's first chair, spent her career at the Labor Department, rising to associate deputy secretary.

"I've been more impressed with the credibility of all the other panels [than with the Bush appointees]," says Mark Roth, general counsel of the American Federation of Government Employees. "With Clinton, they were nationally renowned. . . . Under Reagan, the cases were handled by well-known arbitrators from all over the country. Win or lose, those folks were honest." He says he is not so fond of the current appointees.

Mark A. Carter, a partner in the West Virginia office of Dinsmore & Shohl, chaired the antitrust and labor law committee of the American Bar Association and served on the management committee of the Labor and Employment Law Section of the ABA's young lawyers' division. He is the only current panel member with extensive labor law experience. The panelists with prior government experience did not focus on labor law or mediation. Becky Norton Dunlop, the current chair, was deputy assistant to the president for personnel, director of the Cabinet Office and deputy undersecretary of the Interior Department and assistant secretary for fish, wildlife and parks under President Reagan. Grace Flores-Hughes was assistant attorney general of the Community Relations Service at the Justice Department, acting director of the Office of Hispanic Americans at the Health and Human Services Department, and associate administrator for minority small business and capital ownership development in the administrations of Reagan and George H.W. Bush. Other current panel members have executive experience in the aviation and construction industries, and Dunlop is vice president of external relations for the free-market-leaning Heritage Foundation.

"Each panel member has their own style in interacting with the disputing parties," wrote Dunlop in a statement responding to Government Executive questions. "Panel member Carter finds that the level of contention is far less in the federal sector than in the private sector-for the most part-and that climate in itself makes the process more positive."

But no matter the tenor of those individual styles, decisions issued by the Clinton and Bush panels have followed different paths. Government Executive examined the 75 most recent FSIP decisions, and 75 decisions from the second Clinton administration. The Bush panel settled 68 percent of cases in favor of the employer and 19 percent in favor of the union. The Clinton panel settled 44 percent in favor of the employer and 25 percent in favor of the union.

The real difference between the two panels lies in the number of compromises they brokered, either by ordering the adoption of roughly an equal number of employer and union proposals or by crafting an entirely new solution. The Bush panel issued six compromise decisions (8 percent) in the cases Government Executive examined. The Clinton panel brokered 20 compromises (27 percent). In the cases that remained, the panel either declined jurisdiction or ordered the parties to return to negotiations.

"It's terrifying. Management says no more discussions. If you don't agree, they'll go to an earlier proposal and you can go to the panel," AFGE's Roth says. "And the people who've done that have gotten draconian contracts." During bitter contract negotiations with the Social Security Administration in 2004, the union was forced to give up a pass-fail performance evaluation system, a system that rotated overtime among employees and priority consideration of minority applicants for promotions. Union members narrowly ratified the contract, and Roth said at the time that he felt they could not have gotten a better deal from the impasses panel.

Colleen M. Kelley, president of the National Treasury Employees Union, has an alternate explanation for the decline in compromise solutions: fewer lawyers work with the panel. "In the Clinton administration, there were four or five staff attorneys who worked with the panel," she says. "Today, that staffing has been cut down to two, and I'm told that high-ranking officials at the panel, who don't want to be quoted, say they no longer have the time to help the parties reach a compromise because of staff cuts." That staff decline correlates to fewer compromise solutions, which Kelley says mean unions and agencies spend more time and energy litigating disputes.

In response to questions about the panel's leanings, Dunlop wrote, "While one party, whose bargaining proposal is not implemented, may consider their experience a 'loss,' the panel considers the ultimate customers in their deliberations-an effective government operation and the bargaining unit employees-not the win-loss column of the particular participants and/or negotiators."

"We start from the same premise," Kelley says. "We want the same thing. But when you stack the panel, you make the hard work of compromise impossible."

Alyssa Rosenberg is the fact checker for National Journal magazine.

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