New Legal Rules for Ground Rules Bargaining
By Frank Ferris
Monday, October 8, 2007
On August 30, 2005, IRS management proposed ground rules to NTEU for negotiating the 11th revision in 30 years of their nationwide term agreement. Despite having finished each of the previous nine renegotiations in 6 to 10 weeks--and never reaching impasse on the ground rules, the parties are still without ground rules over two years later. The story about what happened could be a legal primer for highly adversarial ground rules negotiations.
Dating back to the early 80s, the parties' ground rules called for the simultaneous exchange of proposals and 6 to 8 weeks of unassisted bargaining. That period was followed by one or two weeks of mediation before a private neutral who issued written recommendations on any unsettle issues as well as all negotiability and ULP allegations. By a "gentlemen's agreement," the parties always accepted the recommendation as binding. That enabled them to avoid posturing during bargaining for FSIP's potential involvement and the possibility of concerted action by nearly 80,000 employees. It also permitted them to plan a year in advance for when a new contract would be implemented and to keep bargaining costs low.
In August 2005, management proposed to continue those ground rules with only one exception, i.e., it wanted to replace the private neutral with the FMCS/FSIP process. NTEU argued that you just can't change one piece of a puzzle and expect it all to fit. But, management held firm, and with only a telephone contact with FMCS, IRS petitioned FSIP to impose ground rules and FSIP took jurisdiction.
Anticipating a rush to the FSIP by management, NTEU filed several grievance ULP allegations charging management with bad faith bargaining over the ground rules. To date, two different arbitrators have issued decisions on the issues assigned them, and both are now before FLRA on exceptions. While we all await legal finality on some issues of first impression for FLRA, it is worth considering how the NTEU-IRS developments might have produced new rules impacting negotiations elsewhere.
Specific Notice
NTEU's first objection was that it was not obligated to bargain even over ground rules until IRS provided notice of the specific changes management wanted in the term contract. When management merely responded that it wanted to renegotiate "every sentence," NTEU said that was not specific enough for it to bargain intelligently over a schedule, team size, or anything else. When management petitioned FSIP despite NTEU's protest, NTEU put this "bad faith" allegation before an arbitrator.
The union argued that all collective bargaining, even ground rules bargaining, operates under the same legal principles, and that there is a long line of Federal Labor Relations Authority (FLRA) cases requiring specific notice from management of the change it wants before a union need even ask to bargain. NTEU also noted that the NLRB ruled long ago that when only one party proposes to change an existing term agreement it must serve specific notice of its desired changes on the other party before the other is obligated to bargain.
Management argued that because the parties had never done it that way for 30 years and because the simultaneous exchange of proposals was common throughout the federal sector, its proposal was perfectly legal. In short it said, "Look at the practice, not the law."
The arbitrator disagreed saying, "If the Agency is not prepared to furnish sufficient information with respect to the nature, scope and number of proposals (not necessarily the full text) to enable the Union to assess the scope of bargaining and insist on proceeding to impasse with the eight week schedule still on the table, I am persuaded that the combination will not further the statutory bargaining process but will short-circuit it, leaving a truncated and unworkable bargaining process and procedure which does not and cannot satisfy the statutory requirements." He found this to be a 7116(a)(5) violation. If his decision stands, it will mean that the party proposing the change must provide specific notice of the desired changes before the other is obligated to bargain. The parties can always permissively decide to exchange simultaneously, but it is illegal to insist on that to impasse. If both want to change the existing term agreement, that would likely be different.
Intranet Access
NTEU's second objection was that it needed access to the employer's Intranet in order to decide whether it wanted to open negotiations itself. The employer refused even though most of its current personnel policies were written only on the Intranet and virtually all 80,000+ employees have access. It argued the union did not have a "particularized need" for access to bargain the ground rules. But, the arbitrator said that missed the point that the union is entitled to information just to consider reopening the contract, "The Agency's attempt to separate the Union's possible need in connection with the ground rules negotiations from those regarding the merits of the term negotiations is artificial and unpersuasive." Management's actions violated 5 USC 7114(b)(4).
Statutory Waivers
NTEU's third objection was that the employer was insisting to impasse on ground rule proposals that waived several of the union's statutory rights. The most prominent claim was the employer demand that the parties once again agree to limit the number of weeks they bargain before submitting to the will of the impasse neutrals, which in this case would be FSIP. NTEU contended that its 5 USC 7114 (b)(3) right to bargain "at reasonable times" relieved it of any obligation to bargain a cap on the time needed to negotiate until the employer revealed the specific changes it wanted. Moreover, even then, it was not obligated to agree on a cap because unforeseen negotiability disputes, ULP charges, and other mutual distractions might require time to settle before concluding bargaining. Management again argued that this is the way it had always done it and even FSIP had imposed a time limit on parties recently. The arbitrator agreed with NTEU saying, "Adoption of the Agency's proposal would require the Union to waive its right to have the Agency bargain in good faith. That is not a mandatory subject of bargaining."
The arbitrator also followed NLRB precedent in deciding that management's proposal that all agreements be tentative until the entire contract was done and that management be allowed to bring observers into the bargaining were demands that NTEU waive its statutory rights.
The Legal Standard
Management argued that the only legal standard its proposals and ground rule bargaining behavior may be judged by is whether they were designed, "to further, not impeded, the bargaining for which the ground rules are proposed." NTEU said that was only one of the legal criteria for good faith bargaining. IRS also had to avoid demanding to impasse union statutory waivers and respect the full range of "good faith" bargaining case law that may have arisen in midterm or term negotiation situations. The arbitrator agreed with NTEU that multiple standards applied because all collective bargaining must meet the same standards, "The FLRA's test of whether a particular proposal is made in good faith and to further resolution of the dispute is not a substitute for satisfaction of the statutory elements of good faith bargaining."
He concluded his award by ordering management to cease and desist from pursuing an FSIP decision and that it restart its ground rule bargaining effort at the beginning.
Permissive Subjects
As the issues discussed above were being resolved by one arbitrator, another was considering whether management had acted legally when it unilaterally terminated, without notice or bargaining, the effect of any term or midterm contract clause it believed was the product of bargaining over a permissive subject. Management had relied on a series of FLRA decisions which it said supported management's right to do so when the term contract ended, which it did on June 30, 2006 when the employer refused an NTEU proposal to extend it.
NTEU countered by noting that it made no sense for the law to provide that management can unilaterally terminate permissive subject working conditions if they were inscribed in a contract, but that it could not unilaterally change a permissive subject working condition if it was not written into a contract. The union said that, at best, the FLRA decisions were poorly written and, at worst, they were legally incorrect. NTEU asserted that either party can unilaterally terminate the effect of a permissive subject contract clause upon termination of the agreement if the clause is permissive because it is outside the bargaining requirements of 7103(a)(14), i.e., it is not a condition of employment. However, if the clause addressed a permissive subject that was a condition of employment—as are all of the 71065(b)(1) issues, it could not be unilaterally terminated at the end of an agreement. At a minimum, I&I bargaining was required.
The arbitrator agreed with NTEU saying that the employer had to reinstate all the nearly 100 permissively negotiated joint committees it unilaterally terminated because, "The union has made a convincing case that specific and adequate notice and an opportunity to bargain was required under the Statute and the Agreement because the activity of the committee affect ‘conditions of employment.'"
The Irony of It All
Despite thirty years of rapid, low-cost term negotiations between the parties where neither party ever had to call on FSIP to settle a term contract issue, management decided it wanted a change in 2005. While one could argue that they were lured by the pro-management leanings of the current FSIP, we may never know why with certainty—or even if there was a firm decision.
What we do know is that management's effort to make just one change in the three decade old ground rules has unleashed a torrent of litigation that may impact all federal sector parties.
Ironically, had the employer continued its use of a private neutral and convinced NTEU to deal with the risk of management seeking FSIP review of those recommendations, the neutral would have concluded his work in March 2006 and the Panel would have long ago resolved any management challenges to the neutral's recommendations. But they came to the table only asking for concessions and offering no substitutes.
The other opportunity for early settlement was lost when FMCS refused to meet face-to-face with the parties before sending the case to FSIP. The arbitrator, a former General Counsel of the FMCS, first noted that "nothing in the record explains the FMCS release, given the circumstances." and went on to say that looking at all the facts, "calls into question the basis upon which FMCS so hastily released the Parties to the Panel and essentially end-run the statutorily-required bargaining process." As the arbitrator noted, the two elected officers of NTEU met with FMCS Director Rosenfeld to get him to overturn this obvious misuse of FMCS power and he refused. Although NTEU has begun an inquiry to find out more about decision, we may never know why Director Rosenfeld did what he did in this case.
But perhaps the greatest irony is that after 30 years of negotiating success, where neither party ever had even one word of their term contracts imposed on it by law, someone decided it was time to improve on that.
© 2008 Frank Ferris. All rights reserved. This article may not be reproduced without express written consent from Frank Ferris.
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