Negotiability and Impasse: Critical Agency Decision Point
by Bob Gilson |
Whether bargaining a term agreement or on impact and implementation (I&I), federal unions in recent years have developed tactics to try to get Agencies to agree on non-negotiable language. It doesn’t help that the Federal Labor Relations Authority (FLRA) is encouraging this with its arbitration appeal decisions, “appropriate arrangement” negotiability decisions and supporting the pressure on Agencies to pre-decisionally involve unions in day to day policy making.
Agencies that understand the obligations of the Federal labor law have had some significant success in the courts reversing FLRA’s politically motivated decisions. Many Agency practitioners believe that much of this is occurring because the statutory limits on bargaining have been reached and unions have little new to get and get credit for. A problem which FLRA apparently seeks to remedy.
In recent classes, attendees have reported that unions offer proposals that are non-negotiable and despite Agency claims to that effect, are refusing to request a declaration of non-negotiability. The effect of this is to get their proposals before a mediator and ultimately the Panel.
What’s to Worry About?
The bottom line is that there are two ways to get a proposal before the FLRA and later a court, if FLRA makes a decision inconsistent with law, a common event in recent years. The first involves a claim of non-negotiability by an Agency at the bargaining table followed by a request for a declaration of non-negotiability by the union. In this case, once the union has the declaration, it may appeal that decision to FLRA under 5 CFR § 2424 ff. The second arises in the context of an Agency refusal to bargain a union proposal which results in the filing by the union of an Unfair Labor Practice (ULP) allegation. Either way, the proposal gets before FLRA and if the Agency thinks FLRA got it wrong, can appeal into the courts.
So if the union wants to avoid a decision on negotiability by not making a request for a statement of non-negotiability, what happens next is a little muddy. The Agency, of course without a request for a statement, may protest the non-negotiability of the union proposal to anyone who’ll listen. Assuming the Agency won’t agree to violate the law, the matter generally with other disagreed on proposals by both parties goes to mediation. Mediators lack authority to do anything, so arguing negotiability to them so, as Victor Hugo said, “Short as life is, we make it still shorter by the careless waste of time”. If a mediator convinces you to agree to an otherwise non-negotiable proposal, you probably don’t belong bargaining for a Federal Agency in the first place.
The real problem is the Federal Service Impasses Panel (the Panel). I intend no criticism here but the panel in its own guidance states:
In the course of investigating a request for assistance, a party may claim that a matter is outside its duty to bargain. If subsequent research reveals that the claim appears to be frivolous, the Panel will not permit it to block the handling of an impasse. In certain circumstances such as a multi-issue impasse where the claim raises a serious question, the Panel may nevertheless determine to assert jurisdiction in an attempt to work around the matter, with the goal of assisting the parties in resolving the entire dispute.”
So the Panel is saying that it will decide whether your claim of non-negotiability is “frivolous” and even if it is not frivolous, the Panel will assert jurisdiction to “work around the matter”. So now the Panel is in the negotiability business which it, arguably, has no better handle on than the Agency. One may understand that the Panel has to resolve disputes and if the parties aren’t smart enough to protect themselves, perhaps they deserve whatever they get. Additionally both FLRA and the Panel involve their CADRO folks in negotiability disputes to resolve them. There’s a better solution.
So FLRA generally believes that a union proposal violating a management right is an appropriate arrangement, the Panel wants to resolve a dispute and will push an Agency into making language adjustments to do so. CADRO wants to avoid litigation and its interests aren’t served if the Agency says “go away, the matter isn’t bargainable.” Is there a path through this maze?
Let’s go back to the bargaining table before mediation. Let’s say the Agency tells the union that a proposal violates the law and the union won’t ask for a declaration of non-negotiability. Before meeting with a mediator but certainly before meeting with the Panel, an agency might consider the following:
TO: Union Chief Negotiator
FROM: Management Chief Negotiator
SUBJECT: Refusal to Bargain
After careful review, the Agency has determined that Union Proposal(s)(specify) violate 5 USC §7106(a), AND/OR are negotiable only at the Agency’s election under 5 USC § 7106(b)(1), AND/OR are non-negotiable because (Specify). We have made this assertion in the course of negotiations. The union has failed or refused to request a declaration of non-negotiability to resolve the matter in accordance with the provisions of 5 CFR §2424.
Based on the above and on behalf of the Agency, this is to notify the Union that the Agency refuses to bargain the following Union Proposal(s):
(List and Specify)
Further, the Agency shall refuse to discuss or negotiate this (these) proposal(s)further, whether at mediation or before the Federal Service Impasses Panel.
The union is faced with a decision after receiving the above. It can withdraw its proposals; it can request a declaration of non-negotiability from the Agency; or it may file a ULP. Any one of these will accomplish the Agency’s purpose of getting the matter heard and in the case of the second two, get the Agency an avenue of appeal to address the legality of the proposal.
Some may ask, what if the Panel accepts jurisdiction despite this memo. The hard choice for the Agency is whether it tells the Panel that it refuses to cooperate in regard to these proposals. That would likely draw a ULP allegation as well but the Agency might believe “in for a penny, in for a pound”. Any such ULP allegation will rise or fall on the negotiability of the proposals involved. If the battle is worth fighting, the Agency is really saying that the statute isn’t working and let’s let the DC Circuit sort it out when it gets there.
Of course, you can always agree with the union on the issue and avoid creating disharmony with the duly constituted representatives of the oppressed working class and avoid, as well, further grinding of your jackbooted heel in the neck of the proletariat.
As always, any opinion you discern is my responsibility. The above comments are not meant for casual use by those without experience in labor relations and labor law.
© 2014 Robert J. Gilson. All rights reserved. This article may not be reproduced without express written consent from Robert J. Gilson.