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Union Seeks a Rehearing After Administration Panel Rules Against It

By Stephen Barr
Wednesday, August 18, 2004; Page B02

One of the largest federal unions, claiming that it did not get fair treatment from a Bush administration panel that referees labor disputes, has filed a petition for a rehearing of a ruling that covers about 3,800 employees who work in the Medicare program.

The union, Local 1923 of the American Federation of Government Employees, lost 25 of 26 contested issues in an April ruling by the Federal Service Impasses Panel.

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In the ruling, the Centers for Medicare and Medicaid Services rolled back contract provisions that have made it easier for managers to control the use of alternative work schedules, set requirements for office attire and limit union activities at the agency's offices in Baltimore.

The impasses panel ruling has drawn heavy criticism from John Gage, the AFGE national president, who accused the panel of being biased against labor at a protest rally outside the agency's headquarters last month. Some union officers worry that AFGE could lose ground in contract negotiations at other agencies if the ruling is allowed to stand.

Becky Norton Dunlop, who chairs the impasses panel, rejects the union's portrayal. "We were not biased for or against anybody" in the contract dispute, she said.

"The panel has demonstrated that it tries to be fair, follows the law, is deliberative," she said. "We spent many hours on this case, studying final offers."

Dunlop, who returned from a vacation yesterday, said she was not familiar with the union's request for a new hearing. She said the panel will wait to consult its executive director when he returns from vacation, but she suggested it is unlikely that the panel will reopen the case.

The impasses panel's regulations do not provide for reconsiderations; its rulings also do not undergo judicial review.

Congress created the panel, a seven-member, part-time body of presidential appointees, as a forum where labor and management could take disputes when negotiations break down. Federal employees do not have the right to strike and, at many agencies, face strict limits over the topics that can be put on the table for negotiation.

In its motion, AFGE contends that the panel failed to provide constitutional due process in the case because it did not hold a hearing, take testimony or subpoena any documents.

The motion filed by the union objected to the panel's reasoning in a disputed provision over union access to agency facilities for membership organizing drives. The panel indicated it would not impose such a requirement "on a reluctant employer." That rationale, AFGE's motion said, "appears to show an anti-union animus."

The union pointed out that the panel's April ruling was modified in May and contended that the modification represents a violation of the panel's procedures. In six of the 26 contested issues, the panel added language to make the Medicare agency's proposals "legally acceptable," the union said.

The union contends that means the impasses panel should reconsider its decision and rule against the agency on those six issues. The agency's proposals "were not legal as drafted, and therefore could not possibly be the best offer," the union said.

Dunlop, however, said the panel's formal order is identical in the April and May decisions. Because of a clerical mistake, she said, "we did in several of the articles put in clarifying language . . . to ensure that it was clear that nothing should be construed as taking away the parties' statutory rights."

A spokesman for the Medicare agency said officials have "just received" the AFGE petition. "We are reviewing it," he said, adding that "the panel's order is final and binding, and we are following that order."

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E-mail: barrs@washpost.com


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