Photo provided courtesy of flickr.com.
By Falco Anthony Muscante II, Staff Writer
On Wednesday, January 20, 2021, Joe Biden was inaugurated as the 46thPresident of the United States of America. The Biden administration subsequently acted on February 2 to replace all ten of the Trump administration’s appointees to the Federal Service Impasses Panel (“FSIP”), a move not uncommon for incoming presidents. Eight members of the panel voluntarily resigned by 5pm that day, but two others refused to step down and were fired. [1] One of those who did not voluntarily step down was David R. Osborne, the CEO of Americans for Fair Treatment, which is a group designed to help public sector workers exercise their First Amendment rights. [2]
The Federal Service Impasses Panel is a lesser-known entity within the U.S. Federal Labor Relations Authority which resolves stalemates between federal agencies and the unions representing those federal employees. [3] The FSIP is comprised of ten part-time presidential appointees. [4] Under former President Donald Trump, Osborne accepted the position “on the premise that the federal government has a duty to deal fairly with its employees,” and recognized that “[b]ecause much of the federal workforce is unionized, officials must work with union officials on expansive collective-bargaining agreements. To prevent disruptions like the 1981 air-traffic controllers strike, the FSIP is empowered to resolve disputes.” [5]
When bargaining and mediation do not result in a voluntary agreement, one or both of the parties may request assistance from the FSIP to assist in resolving disputes. At that time, the panel will conduct a preliminary investigation of that request. [6] If the panel chooses to assert jurisdiction over the request, it has the authority to impose various dispute-resolution methods. Where parties continually fail to reach an amicable outcome, the panel is empowered to issue a binding decision which “[t]he parties may not appeal . . . to any court.” [7]
This panel is particularly political because unlike other boards and commissions which are statutorily required to consist of both Republican and Democratic appointees, the FSIP members all “serve at the pleasure of the president.” [8] Before the Biden administration replaced all the former members, who were Trump administration appointees, their predecessors were all Obama administration appointees. [9]
The impact of the labor policy movement and continual back-and-forth swing of the FSIP have sparked polarizing opinions. Public-sector unions continue to grow in membership and influence while spending money on lobbying efforts, campaigns, candidate selection efforts, voter turnout, and issue advocacy. [10] Osborne cautions that “Americans of all stripes should have concerns about how politicized these unions might become if given free rein by the Biden administration [through its FSIP appointments], and how that might hinder the business of governing.” [11] Others, like the largest federal employee union in America, applaud the Biden administration “for taking swift action to prevent more damage done to the federal workforce” by the FSIP under the Trump administration, which some allege as having been “‘stacked with transparently biased union-busters . . . [to] further an extreme political agenda.’” [12]
As one political commentator writes, “presidents put people on boards and commissions expressly to pursue policies derived from their political persuasion. Everyone expects that. In labor-management disputes, though, the government is supposed to be an objective, neutral intermediary.” [13]
[1] https://www.law360.com/articles/1351672/biden-ousts-all-10-members-of-federal-labor-panel-
[2] https://www.americansforfairtreatment.org/about-us/
[3] https://www.flra.gov/components-offices/components/federal-service-impasses-panel-fsip-or-panel
[4] Id.
[5] https://www.wsj.com/articles/biden-fired-me-by-order-of-big-labor-11612998891?st=4anuf8fhqkq45u5&reflink=article_email_share
[6] Supra note 3.
[7] Id.
[8] https://federalnewsnetwork.com/tom-temin-commentary/2019/06/afge-union-and-federal-service-impasses-panel-politics-or-policy/
[9] See Id.
[10] Supra note 5.
[11] Id.
[12] https://www.afge.org/article/biden-removes-all-10-members-of-anti-worker-federal-service-impasses-panel/
[13] Supra note 8.